author: Bird, J.

text:
    BISSELL v. FORD.
    1. Adjoining Landowners — Excavation—Lateral Support.
    In excavating near the boundary line of his premises, a proprietor must take reasonable precautions to prevent the falling of adjacent property, because of the removal of lateral support.

    2. Same.
    He is liable for injury to the real estate even if he takes precautions such as are necessary and reasonable, but is not liable for damages caused to any superstructure.
    3. Same.
    If the pressure of the superstructure causes the land to fall, no liahility arises from damages to either, but if he fails to take such reasonable precautions to protect his neighbor’s realty and preserve it in a natural state, one who removes the lateral support is liable for injury to both land and buildings if the negligence was the proximate cause of the fall, and not the pressure or weight of the building.
    4. Same — Excavation—Lateral Support — Negligence.
    It was a question of fact for the jury in a suit by the owner of a building for damage caused by excavating on adjoining premises, whether defendant’s contractor exercised reasonable care in causing several caissons to be sunk from 65 to 114 feet, removing 45 per cent, of the soil in the belt included by the pits, which were across a 20-foot alley from the injured structure, and in leaving the openings exposed for several weeks; testimony of experts being offered to show that the method pursued was improper.
    5. Same — Building and Construction — Negligence.
    Whether due care was used in ascertaining the character of the soil through which the excavation was required to extend, in order to protect an adjacent office building, was also a question of fact upon testimony- showing that a proper and careful exploration would have disclosed that a body of salt water lay between the surface and bed rock, rendering the sinking of caissons to the rock impracticable.
    6. Same — Due Care.
    Defendants could not be required to have on hand equipment sufficient to care for the large body of water which they unexpectedly encountered at a depth of 90 to 115 feet, as that would be to demand extraordinary precautions, but the jury was rightly permitted to say whether a reasonable effort was made to dispose of the water after it appeared.
    7. Same — Master and Servant.
    For injury done by the negligence of a contractor working independently of the owner’s control, he would not be held responsible unless the work was inherently dangerous.

    8. Master and Servant.
    Under a construction contract which provided that the architect and his assistants should have free access to the work, that the contractor should commence and cease from operations when directed by the architect in case the work was insufficiently or insecurely done, that the owner might at any time make alterations in the plans, and the architect might determine at all times how many men should be employed continuously, and that in case of the failure of the contractor to furnish materials and perform labor according to the contract the owner might take the work into his own charge, supervision and control of the work upon the foundation was so reserved in the proprietor as to charge him for injury caused to an adjoin-, ing building by negligent sinking of caissons and removal of sufficient lateral support.
    9. Adjoining Landowners — Real Property — Evidence.
    Evidence that the pressure of soil on the lagging or supports in certain pits caused the supports to bulge in the direction in which the slipping or movement occurred was competent; also, testimony should not have been excluded that some space was necessarily left between the earth and lagging.
    10. Same — Evidence.
    While testimony' of experts that, even with employment of a high degree of care, adjoining buildings are more or less affected, was properly received, the court erred in receiving evidence that in specific instances similar difficulties were encountered in constructing buildings specifically referred to.
    11. Same — Damages—Injury to Office Building.
    Damages might properly be based on the rentals or receipts from the building that stood on the premises affected by the defendant’s negligent excavation, regardless of the worth of the real estate for other purposes.
    12. Damages.
    When one has been injured in his property by the wrongful act of another, the claim for compensation cannot be successfully met by showing that if the injured property were devoted to other uses, the damage would be diminished.
    Error to Wayne; Mandell, J.
    Submitted April 19, 1911.
    (Docket No. 50.)
    Decided June 2, 1913.
    Rehearing denied January 5, 1914.
    Case by Blanche W. Bissell and others against Edward Ford and others for damages to an office building. Judgment for defendants. Plaintiffs bring error.
    Reversed.

      H. E. Spalding and Walker & Spalding (Harrison Geer, of counsel), for appellants.

      Stevenson, Carpenter & Butzel (William L. Carpenter, of counsel), for appellee Ford.

      C. K. Latham and William C. Stuart, for appellee Goddard.

      Choate & Webster, for appellee Vaughan.

       As to the liability for removal of lateral or subjacent support of land in its natural condition, see note in 68 L. R. A. 673. And upon the liability for injuries to buildings on adjoining land by negligent removal of lateral support of soil, see note in 6 L. R. A. (N. S.) 243.

       The authorities on the question of the liability of employer for injury by independent contractor to lateral support are treated in a note in 65 L. R. A. 849. And for general rule as to absence of liability of master for acts of independent contractor, see note in 65 L. R. A. 622. And on the question who is an independent contractor, see notes in 65 L. R. A. 447 and 17 L. R. A. (N. S.) 371.

   Bird, J.

The plaintiffs are the owners of the Moffat building, which is six stories in height, situate on the southwest corner of Fort and Griswold streets, in the city of Detroit. Defendant' Ford is the owner of the Ford building, which is located immediately south of the Moffat building; a 20-foot alley intervening. Each building has a frontage on Griswold street of 138 feet and upwards of 100 feet on the alley. The Ford building is an 18-story office building, and its construction was begun in Aúgust, 1906, with defendant Goddard as principal contractor. The building stands on 47 concrete piers, and the work of excavating for and construction of these piers was sublet by Goddard to defendants Vaughan and Dumont. The principal question in the case grows out of the manner in which the defendants Vaughan and Dumont did their work. Before beginning, their work 11 borings were made at different locations on the premises, with a 21/2-inch auger, to the depth of from 65 to 70 feet, and they disclosed a clay soil of varying degrees of consistency, with occasional streaks of sand. Vaughan and Dumont started the work on September 18, 1906, intending to put the caisson pits for the piers down to bed rock, a depth of approximately 120 feet, but at the depth of 95 feet they encountered a large body of sulphur water, which rendered it impracticable to go that far without increasing materially the cost of construction. It was therefore decided to go no farther than the 95-foot level and to fill the pits that were already below that level up to the 95-foot level. To compensate in part for not going to bed rock, the resisting power of the piers was increased by enlarging them at stated depths into bell-shaped formations. In pursuance of this plan, seven pits were sunk at the same time along, adjoining, and projecting into the alley. The five easterly ones were from 6 to 6% feet in diameter and were sunk to a depth of between 114 and 115 feet. The two westerly ones were 8 feet in diameter and were about 60 feet deep. Before these were completed, 8 pits along the Griswold street line were commenced. In excavating for the 7 pits along the alley, 45 per cent, of the soil within the belt in which they lay was removed. About a month was consumed in excavating the pits to the depths stated, and on October 20th water came into some of them, and on the next day it broke into one of the deeper ones in great volume and from there communicated to the others. The presence of the water in the pits caused all work to be suspended, and a considerable delay followed. The lack of adequate pumping machinery contributed to the delay. The work of pumping out the pits and filling them with concrete was begun on November 7th, and concluded on February 16, 1907. A few days before the water broke into the pits, it was observed that the alley side of the Moffat building commenced to settle, and it continued to settle until and after the pits were all filled; the maximum settlement of the wall next to the alley being 5% inches, and the lateral movement toward the alley being about 2 inches. The maximum settlement in the alley was 6^4 inches. This resulted in considerable damage to the Moffat building, causing its walls to crack and to materially lessen the life of the building. The cost of repairs was shown to be $28,000, and the permanent injury to the building was estimated at $75,000. It was for the recovery of these damages that this action on the case was commenced.

The right to recover is based upon the negligence of the defendants in the construction of the foundations. The several items thereof being stated as follows:

“(a) In failing to ascertain, before adopting the plan of construction, the character of the soil on the site of the Ford building and the presence therein of a body of water such as would make the execution of that plan impracticable.
“(b) In sinking at the outset and at one time a line of pits in a part of their site where soil movement and seepage would be most likely to be caused.
“(g) In failing to adopt and use proper methods and adequate appliances in freeing the pits from water after they were flooded.
“(d) The neglect of a preliminary investigation to ascertain what lay between the surface and bed rock.”

At the conclusion of plaintiffs’ case, the trial court was of the opinion that no case had been made for the consideration of a jury, and accordingly directed a verdict for the defendants. The question as to. whether the trial court was right in so doing is the principal question before us on review.

The question of the relative rights and obligations of adjacent landowners with reference to the lands in a natural state, and also with reference to making excavations and improvements thereon, was much discussed and considered in the case of Gildersleeve v. Hammond, 109 Mich. 431 (67 N. W. 519, 33 L. R. A. 46), and as a result thereof certain rules were therein laid down which were intended to serve as a guide and help in settling future controversies of that character. They are:

(1) While a landowner has the undoubted right to excavate close to the boundary line, he must take reasonable precautions to prevent his neighbor’s soil from falling.

(2) If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructure.

(3) If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure.

(4) If he fails to take such reasonable precautions to protect his neighbor’s soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall, and it fell in consequence of the failure to take such reasonable precautions.

The negligence complained of in the declaration brings the case within the last one of these rules. Viewing the situation through these rules, it is clear that the defendant Ford had a right to excavate to the depth which he did to secure his foundations, and, if in so doing due regard was had for the premises of his neighbors on the north, there can be no recovery in this case, even though there was a lateral movement of the soil, because no claim is made in the declaration for injury to the land. On the other hand, if the method adopted and followed was one which lacked skill and ordinary care, then he would be liable for the damages which ensued.

It is pointed out that the plan was lacking in skill and ordinary care in that seven caisson pits were sunk parallel with the alley at nearly one and the same time, to a depth varying from 65 to 114 feet, thereby removing 45 per cent, of the soil in the belt in which they were constructed next to and projecting into the alley, and that this exposure continued for several weeks. Engineers who were familiar with caisson foundation work testified that the method pursued was an improper one and that the proper way would have been to open the lines of caisson pits at right angles to instead of parallel with the Moffat building and to fill them with concrete as soon as they were sunk and to permit no more than one pit at a time to be open next to the alley. .This ground of negligence was, under the testimony, a question of fact and should have been submitted to the jury.

Another ground of negligence is that, if it were intended to go to bed rock, it should have been determined in advance what the character of the soil was which lay between the surface and the rock, and it is argued that subsequent events showed that, had this been done, the body of salt water which overlay the rock would have been discovered and the trouble which followed would have been in a measure obviated. This question was likewise the subject of expert testimony. That testimony suggested that in beginning the work one pit should have been put down to bed rock. This would have disclosed conditions between the surface and the rock and would have furnished a guide in sinking those that followed. In the construction of the modern skyscraper, which requires the foundations to be put down to such great depths, a due regard for the adjacent premises ought to make it incumbent upon those sinking them to use reasonable diligence to ascertain in advance the character of the soil through which it is intended to go.

The third item of neglect is the failure of defendants to adopt proper methods and adequate appliances to free the pits from water. To require defendants to have at hand equipment which would take care of as large a body of water as was encountered would be to hold that it was necessary for them to take extraordinary precautions; this they were not bound to do. Washburn’s Easements & Servitudes (4th Ed.), [§ 439] p. 592. As to whether a reasonable effort in that direction was made after the presence of the water became known was one of fact, depending upon the great exposure of the lateral support and the ease with which adequate appliances could be supplied.

It is argued that, whatever injury resulted on account of seepage, no recovery can be had therefor, and that, as the testimony does not point out how much of the injury was due to the “too near digging” and how much to “seepage,” the jury had no data upon which a verdict could be based. The plaintiffs were entitled to the use and enjoyment of their land, protected by the lateral support of defendants’ land. If that support was negligently removed and the adjacent premises were injured in consequence of it, of what importance is it that the lateral support was composed of one kind of soil rather than another? Whether the lateral support was composed of a rocky formation, a clay soil, a sandy soil, or a peat soil, or any admixture of these, and whether there was much or little moisture in it, the plaintiffs were entitled to its protective support, whatever it was. The kind of soil it was might be important in determining the amount of care required in removing it, because the care in removing must be commensurate with its cohesiveness and mobility. It must be borne in mind that the complaint made in this suit is that the lateral support was withdrawn in such a negligent manner that plaintiffs’ land moved downward and outward and injury resulted. The plaintiffs do not deny the right to remove the soil to the depth it became necessary, but they complain of the manner in which it was done, and stake their case upon the proposition that all that was done might have been accomplished by the use of reasonable care, with no additional cost and without injury to them. If there were two ways in which defendant Ford could make the desired improvements on his land, one of which, with the use of reasonable care and skill, would not injure plaintiffs’ premises, and another method which lacked skill and care, which would result in injury to them, it was clearly his duty to select the former. Whether he has done so was a question of fact. An examination of the testimony bearing upon this phase of the case has persuaded us that the questions whether there was a lateral soil movement, and, if so, whether it was occasioned by the failure of defendants to exercise reasonable care and skill in putting down the foundations, and whether such soil movement would have taken place had not the building been situate thereon were all questions of fact for the consideration of the jury.

Much importance has been placed upon the cases of Popplewell v. Hodgkinson, 4 L. R. (Exch.) 248, Frazier v. Brown, 12 Ohio St. 294, and New York, etc., Filtration Co. v. Jones, 37 App. D. C. 511 (37 L. R. A. [N. S.] 193), as supporting the proposition that no recovery can be had for injuries resulting from seepage. In all of these cases complaint was made because of the doing of an act, viz., the withdrawing and diverting of subterranean waters to the injury of plaintiffs’ premises. It was the doing of the act rather than the manner of doing it that caused the complaint. The right to do the act was denied. In the case at bar the right to do the act, namely, the putting down of the foundations to such great depth, is not denied, but the thing complained of is the negligent manner in which the act was done, and it is insisted by the plaintiffs that all that defendants accomplished might have been accomplished without injury to them, if the defendants had done the act with reasonable care and skill. Therein lies, in my opinion, the inapplicability of those cases to the facts disclosed by this record.

The further question is presented whether Goddard and Vaughan and Dumont, in doing the work, were independent contractors in the sense that defendant Ford would be relieved of liability for their negligence. This question must be determined from the contracts of the parties. The rule in such cases is well stated in Atlanta, etc., Co. v. Kimberly, 87 Ga. 161 (13 S. E. 277, 27 Am. St. Rep. 231), where it is said that:

“Where an individual or corporation contracts with another individual or corporation exercising an independent employment, for the latter to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor’s own methods, and not subject to the employer’s control or orders except as to the results to be obtained, the employer is not liable for the wrongful or negligent acts of the contractor or of the contractor’s servants.”

The opinion then proceeds to point out several exceptions to this rule, one of which is as follows:

“The employer may also make himself liable ‘by retaining the right to direct and control the time and manner of executing the work, or by interfering with the contractor and assuming control of the work, or of some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference.’ ”

The rule laid down in the foregoing is in accord with Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495); Larsen v. Telephone Co., 164 Mich. 295 (129 N. W. 894); Ripley v. Priest, 169 Mich. 883 (135 N. W. 258). Some of the stipulations of the contract which bear upon the extent to which the right was reserved by defendant Ford to direct and control the work are:

(a) The architect and his assistants shall at all times have free access to the work.

(b) The contractor shall enter upon the work when directed by the architect.

(c) The contractor shall cease work on any part of it which in his opinion will result in insecure or unsafe construction and shall not thereafter proceed with it until notified by the architect what to do and when to proceed.

(d) The owner may, at any time during the progress of the work, make alterations in plans, material, or workmanship, with proper allowance for extra expense, etc.

(e) The architect may- direct how many men shall be continuously employed.

(f) In case of failure of contractor to furnish materials, perform labor, etc., the owner is given the right to take the work into his own hands and complete it at the expense of the contractor..

(g) The contractor shall do all excavating for all basements, areas, caissons, etc., and shall remove from the premises all earth and debris, as directed by the architect.

(h) The contractor shall do all bailing and draining of caisson wells, trenches, and basement surfaces, which may' be necessary during the progress of the work, using the best means of accomplishing the same, as directed by the architect.

(i) The contractor shall build caisson foundations as shown on both the engineering and architect’s drawings, digging to be thoroughly braced and protected until concrete.piers are complete; jacks and drums to be used where necessary. Shafts to be kept straight and plumb and carried down to bed rock. This, contractor shall estimate on a basis of depth.

(j) - The contractor shall estimate on a basis of depth of 120 feet below grade line to bed rock and sba.11 give a price per foot for additions to or deductions from this depth. As the excavations progress the sides of walls are to be cased with wood lagging, held in place by means of adjustable steel rings.

After specifying the method of construction and of filling the caissons, the contract then provides that:

“The entire work being executed in such a manner as to be acceptable to the Htchitects in every respect.”

It is apparent from these provisions that the defendant Ford reserved the right, through the architects, of a supervisory control of the building operations. It is not the case of making the architect the judge as to whether the work has been executed in accordance with the plans and specifications, but the right reserved goes- further and reserves to him the right to partially control the work; to say how and when it shall be done; to dictate the number of employees which shall be continuously employed; the right to take the work into his own hands in certain contingencies ; and provides for an exercise of discretion by the architects as to the work during its progress. The right reserved is broad enough to permit the architects to dictate the manner and order of putting down the caissons.

Several errors are assigned because of the action of the trial court in the admission and rejection of testimony. As these questions will likely arise again on a retrial, they will be considered.

The witness Meier was asked on direct examination whether he ever saw in any of the caisson pits anything indicating that the soil was moving, and answered:

“That he did and that what he saw was on November 7, 1906, in the third pit south from the alley on Griswold street, and that what he saw was a strong bulging in the lagging on the northeast side of that caisson at an estimated depth of 60 feet below the street level; that the amount of bulging seemed to be about four inches (that is, that the lagging was swelled in or pressed in about four inches) ; and that a light was dropped either by the foreman or the clerk in order that he might see the bulge.”

This testimony was, upon defendants’ motion, stricken out because the caisson pit in which the observation was made was too far removed from the alley, and because there no proof that the bulging was caused by the pressure of the earth.

Plaintiffs also offered to show, by expert testimony in connection with this question, that it was impracticable to put down caisson pits without leaving more or less space between the lagging and the earth. It was the contention of plaintiffs that the lateral movement of the Moffat building was caused by a movement of the soil under it to the south and toward the caisson pits, and that the pressure of the soil against the lagging was evidence that the soil did move southward. It was a circumstance tending to support that contention, and the fact that such evidence was not conclusive of the question, and that there were other ways to show such movement did not necessarily render the proffered testimony incompetent. We think it should have been received. And we are also of the opinion that the testimony offered by the experts was admissible. If it were true that it is impracticable to put in lagging without leaving voids back of them, and on the occasion in question it was observed that the voids were filled and that there was a bulge in the lagging, it would be some evidence that an outside pressure was moving toward them.

The same witness upon cross-examination was asked:

“Q. Is it not a frequent occurrence where the best kind of care is used that adjoining buildings will be affected more or less? (Objected to as immaterial. Objection was overruled and an exception allowed the plaintiffs.)
“A. It does occur; yes, sir.
' “Q. Didn’t it occur in the case of the Hammond building with the same sort of soil that there was here under the Ford building? (Plaintiffs’ counsel again ' objected, saying that every case must stand or fall on its own, facts, and that we are not trying that case. That the Union Trust building was erected by driving piles, the Ford building upon caissons, and that the two methods were not comparable.”

The first question does not appear to be objectionable, but the second one does. An inquiry of one who is skilled in such business as to the general effect the construction of a building of this character usually has upon neighboring buildings would not seem to be improper, whereas an inquiry which called for specific injuries to a particular building would lead so far into the field of collateral questions that it would be objectionable.

On the cross-examination of Mr. Clark, manager of the Moffat building for plaintiffs, it appeared that the net rental of the Moffat building in the years 1907, 1908, and 1909 was between $16,000 and $17,000 a year. He was then asked whether the site could not be leased with the building off for at least $25,000 a year net. The trial court permitted the question to be answered over the objection of plaintiffs that it was immaterial and incompetent.

When one has been injured in his property by th'e wrongful act of another, the claim for compensation for such wrongful act cannot be successfully met by showing that, if the injured property were devoted to other uses, the damages would be thereby lessened. The use which is being made of the property at the time the injury occurs is a proper basis for estimating the damages. The objection should have been sustained.

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

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, and Ostrander, JJ., concurred. Brooke, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FOILES v. MICHIGAN COMMERCIAL INSURANCE CO.
    Error to Houghton; Streeter, J.
    Submitted November 18, 1912.
    (Docket No. 81.)
    Decided June 2, 1913.
    . Assumpsit by Ella Foiles against the Michigan Commercial Insurance Company, on a policy of fire insurance. Judgment, for plaintiff, and defendant brings error.
    Affirmed.

      Hanchette & Lawton (Harry E. Hooker, of counsel), for appellant.

      Burritt & Burritt, for appellee.
   Moore, J.

This case involves the same principles that were involved in Foiles v. Insurance Co., 175 Mich. 716 (141 N. W. 879), in which an opinion, was handed down, and is controlled by it.

The judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    NORTHERN ASSURANCE CO. OF MICHIGAN v. COMMON COUNCIL OF CITY OF DETROIT.
    Taxation — Insurance Companies — Assets—Statutes.
    In determining the amount of property liable to taxation, in the case of insurance corporations claiming deductions by reason of exempt bonds or property, and mortgages on which the company has paid a specific tax, the report of the State insurance commissioner, showing the balance subject to assessment, is not conclusive under Act No. 235, Pub. Acts 1903. If it is ascertained that such balance consists in whole or in part of tax exempt securities, the amount of the same should be deducted. The determination of the board of assessors, refusing to deduct mortgages of such corporation on which it has paid the specific tax under Act No. 91, Pub. Acts 1911, was rightly reversed, on mandamus, in the circuit court.
    Certiorari to Wayne; Hosmer, J.
    Submitted January 21, 1913.
    (Calendar No. 25,400.)
    Decided June 2, 1913.
    Mandamus by the Northern Assurance Company of Michigan against the common council of the city of Detroit to compel respondents to strike relator’s assessment from the tax rolls. An order granting the prayer of relator’s petition is reviewed by respondents on writ of certiorari.
    Affirmed.

      Walter Barlow (Richard, I. Lawson, of counsel), for appellants.

      Fred H. Aldrich (Watson, Safford & Shepherd, of counsel), for appellee.
   Bird, J.

The relator seeks by this proceeding to compel the respondents to strike from the tax rolls of the city of Detroit for the year 1912 certain real estate mortgages of the value of $55,450, upon which it claims to have paid the specific tax under Act No. 91 of the Public Acts of 1911. The relator is a domestic insurance company, and the statutory directions for ascertaining its personal property assessment is as follows:

“In computing the taxable property of insurance companies organized under the laws of this State, the value of the real property on which a company pays taxes shall be deducted from its net assets above liabilities, as determined and shown, by the last report of the commissioner of insurance, including in such liabilities the legal reserve required by the laws of this State, or the regulations of the insurance department, and. the rémainder shall be the personal property for which the company shall be assessed.” Act No. 235, Pub. Acts 1903.

In compliance with the statute, the board of assessors ascertained from the last report of the insurance commissioner that the total assets of relator were $401,486. From this sum they deducted liabilities amounting to $286,217 and the further item of $59,812 invested in tax exempt municipal bonds, leaving a balance of $55,450 as its personal property assessment. The relator then exhibited to the board certain real estate mortgages whose aggregate value exceeded its assessment and requested that its assessment of $55,450 be stricken from the rolls. This request was denied. Application was then made to the circuit court for a writ of mandamus to compel such action, and it was granted. Respondents now ask us to set aside the order of the circuit court on the grounds: (1) That the report of the insurance Commissioner does not show , that relator has paid the specific tax on $55,450; (2) that the board of assessors, having determined the assessment from the commissioner’s report, its determination is final. In brief, the argument of respondents is that no deduction can be made from the assessment so ascertained by them on account of exempt property unless it is shown upon the face of the commissioner’s report that it is exempt.

We think a reasonable construction of the statute is that it provides a rule to be followed by assessing officers in determining what part of the assets of an insurance company is liable to taxation. And after this rule has been followed in a given case and the personal property assessment ascertained, the mandate of the statute has been complied with, and it then becomes the duty of the assessing officers, acting under their general powers as assessing officers, to determine what portion, if any, of such assessment is exempt by law from taxation, and, when it is ascertained that the assessment includes securities exempt by law, the deduction should be made. Union Trust Co. v. Detroit Common Council, 170 Mich. 692 (137 N. W. 122).

The contention that the report of the insurance commissioner is conclusive on the question of exempt property would be more persuasive had the legislature made it the duty of the commissioner to determine what portion of the company’s assets were exempt and furnished him some basis for making the determination by requiring the companies to include in their reports to him the information as to what portion of their securities were exempt from taxation.

The respondents, in support of their contention, cite the case of Detroit Fire & Marine Ins. Co. v. Hartz, 132 Mich. 518 (94 N. W. 7). An effort was made by the insurance company in that proceeding to have certain bonds exempt under the laws of the United States deducted from its assessment. This court refused to order the deduction, but its refusal to do so was placed upon grounds other than those which would sustain respondents’ argument in this case.

We are of the opinion that the circuit court reached the proper conclusion, and its order will be affirmed. ‘No costs will be allowed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


text:
    LONGENECKER v. GRAHAM.
    1. Deeds — Insane Persons — Competency—Undue Influence.
    Evidence considered and held, to sustain the finding of the circuit court that complainant executed a certain deed by reason of undue influence and mental incapacity.
    2. Same — Ratification.

      Held, also, that a contract ratifying the instrument made while the probate court had jurisdiction of a petition to adjudge the grantor incompetent, did not validate the deed, where a guardian was later appointed and continued to act until discharged by order of the probate court.

    Appeal from Kalamazoo; Knappen, J.
    Submitted April 15, 1912.
    (Docket No. 82.)
    Decided July 9, 1913.
    Bill by Margaret Longenecker and others against Sarah E. Graham and others to set aside a deed. From a decree for complainants, defendants appeal.
    Affirmed.

      James M. Powers, for complainants.

      Stewart & Jacobs, for defendants.

       As to the validity of a deed by an incompetent person, see note in 19 L. R. A. 489. And on the question whether a deed of real property executed by an incompetent not judicially declared such may be avoided in action at law, see note in 19 L. R. A. (N. S.) 461.

   Moore, J.

Abraham Longenecker, the husband of the complainant, Margaret Longenecker, and father of the other complainants and of the defendants Sarah IE. Graham and Mary Smith, died December 11, 1899. .All of the parties to this litigation were of full age at the time of his death. Prior to his death Mr. Longenecker was the owner of 240 acres of land. A few weeks before his death he made arrangements to divide his property among his children by giving to each 40 acres of land, with the exception of his daughter Mary Smith, to whom he gave $1,500 in cash in place of land. In attempting to carry out such arrangements, Abraham Longenecker on the 8th day of November, 1899, employed Mr. E. W. Wilcox to prepare deeds of all of his land, subject to a life estate in Margaret Longenecker, and he also made arrangements to have $1,500 paid to his daughter Mary Smith. In making these deeds Mr. Wilcox made a mistake in the description of the land in the deed to Benjamin S. Longenecker and Clara Snell, so that, instead of conveying all of his land, Mr. Longenecker left 40 acres not conveyed to any one. To show the descriptions of the several parcels of the Wakesham farm and the persons to whom the several parcels were to be conveyed, Abraham Longenecker drew a diagram of the farm and marked on each parcel the initials of the persons to whom the conveyances were to be made. That diagram was introduced in evidence on the hearing, and the initials were shown to be in the handwriting of Abraham Longenecker. It was shown that the initials on the diagram, “G. W. L.,” were meant for George W. Longenecker, the initials “S. G.” meant the •defendant Sarah E. Graham, and the initials “B. & C.” meant his son and daughter Benjamin S. Longenecker and Clara Snell. After the deeds were executed they were handed to Mr. Longenecker, and kept in his possession until November 27, 1899.

It is claimed by the complainant that after the deeds were drawn and before November 27, 1899, Mr. Longenecker discovered that the deed to Sarah E. Graham was not as he desired it to be, and he had a new deed drawn to her on the 27th day of November, 1899, of “the northeast quarter of the northwest quarter of section thirty-two, town four south, range nine west. My wife Margaret Longenecker, shall have the use and benefit of said land with all rents as long as she shall live.” This deed was made to Sarah E. Graham for her lifetime, at her death to be equally divided between her children, but subject to the life estate of Margaret Longenecker.

It is also said this deed was drawn by Mr. Kingsley. Abraham Longenecker gave him the former deed from which to get the description and directed him to burn the other deed, and he did burn it. At the time the deed was executed to Sarah E. Graham, November 27, 1899, none of the deeds had been delivered, but they remained in the possession and control of Abraham Longenecker. After the new deed was drawn to Sarah E. Graham and the former deed burned by Mr. Kingsley, Mr. Longenecker handed them to his son Adam, and told him to see they were put on record after his death and delivered to the parties; and after the death of his father Adam Longenecker had them recorded and delivered them to the different parties as directed.

That, part of the decree from which an appeal is taken which it is necessary to quote reads as follows:

“III. That the quitclaim deed executed by Margaret Longenecker, one of the complainants in this cause, to the defendant Sarah E. Graham on the 23d day of September, A. D. 1905, of the northeast quarter of the northwest quarter of section number thirty-two, town four south, range nine west, is hereby decreed to be null and void and of no effect and the same is hereby canceled, and the complainant Margaret Longenecker is hereby decreed to have the right to the use and benefit and possession of said land last above described from and after the 27th day of November, A. D. 1899,- and for and during her natural life, and after the death of the said Margaret Longenecker the said defendant Sarah E. Graham is hereby decreed to have the right to the use and possession of said land for her lifetime, and after the death of said defendant Sarah E. Graham the same to be equally divided between the children of said Sarah E. Graham, in accordance with the terms of the deed of the land last above described executed by Abraham Longenecker to Sarah E. Graham, and recorded in the office of the register of .deeds of Kalamazoo county, Michigan, on the 14th day of December, A. D. 1899, in Liber 106 at page 370.”
“IV. And it is further ordered, adjudged and decreed that the contract entered into between Margaret Longenecker, Adam Longenecker, Benjamin S. Longenecker and Sarah E. Grahám on the 24th day of October, A. D. 1905, a copy of which is set forth in the twentieth paragraph of the bill of complaint in this cause, be and the same is hereby canceled, and said contract is hereby decreed to be null and void.”
“V. And it appearing to the court from the pleadings and proofs in this cause that at the time of the execution of the quitclaim deed of the northeast quarter of the northwest quarter of section number thirty-two, town number four south, of range nine west, by the complainant Margaret Longenecker to the defendant Sarah E. Graham, she, the said Margaret Longenecker, paid to said defendant Sarah E. Graham and Louis E. Graham, the sum of $600, which payment of said sum was procured by the fraud, false representations and threats of said Louis E. Graham and Sarah E. Graham and was without consideration: It is therefore further ordered, adjudged and decreed that the said defendants Sarah E. Graham and Louis E. Graham pay forthwith to said complainant Margaret Longenecker the sum of $600 and interest thereon at the rate of 5 per centum per annum, from the 23d day of September, A. D. 1905, to the date of this decree, amounting in all of principal and interest to the sum of $767.50 and interest thereon at the same rate until the same is paid.”
“VI. And it is further ordered, adjudged and decreed that the temporary injunction issued in this cause on the 18th day of May, A. D. 1910, restraining the defendant Sarah E. Graham and John C. Davis, justice of the peace, from proceeding with the trial of the action at law, commenced before said John C. Davis, one of the justices of the peace of the city of Battle Creek, Calhoun county, Michigan, on the 25th day of April, A. D. 1910, by the defendant Sarah E. Graham against the complainant Margaret Longenecker, until the further order of this court be and the same is hereby made permanent, and the said defendant Sarah E. Graham is hereby perpetually enjoined from proceeding further with said action at law before said John C. Davis, and from prosecuting the same in said justice’s court or in any other court against said complainant Margaret Longenecker for the same cause of action.”

Mr. and Mrs. Graham claimed that the first deed to Mrs. Graham, which was drawn by Mr. Wilcox, of 40 acres of land was in fee simple, absolute, without any reservation of the life estate to Margaret Longenecker, or any one else, and they claimed that Adam Longenecker had destroyed the deed to Sarah E. Graham made on November 8, 1899, and had procured his father by undue influence to execute the deed of November 27, 1899, to Sarah E. Graham, reserving a life estate to the widow, and to Sarah E. Graham for her lifetime after the death of Margaret Longenecker, and at the death of Sarah E. Graham to be equally divided between her children. To show this they took the deposition of Mr. Wilcox, but he testified that Mr. Longenecker directed him to draw all the deeds subject to a life estate in Mrs. Longenecker, and that he believed he so drew them. Mr. and Mrs. Graham, under circumstances hereafter stated, procured from Mrs. Longenecker a quitclaim deed of the 40 acres or land conveyed by Abraham Longenecker to Sarah E. Graham by the deed of November 27th, and $600 in cash which they claimed for the use of the land from the time of the death of Abraham Longenecker. This deed bears date September 23, 1905, and the $600 in cash was paid by her at or about that time.

When Margaret Longenecker’s other children found she had made the quitclaim deed and paid the Grahams $600, and on or about the 27th day of September, 1905, a petition was filed by them in the probate court of St. Joseph county for the appointment of a guardian for Margaret Longenecker as mentally incompetent to have the control of her person and property, and alleging that she was the owner of a life estate in 160 acres of land valued at $500 per year or thereabouts. While this petition was pending in the probate court and on or about the 24th day of October, 1905, Mrs. Longenecker was induced to sign a contract, which is spoken of later as a ratification of the deed, which she asks in her bill of complaint to have canceled as well as the quitclaim deed. Sarah E. Graham and her husband, Louis E. Graham, opposed the appointment of a guardian, and it is their claim this contract was understandingly made. After the contract was signed, the probate court for St. Joseph county made an order adjudging her to be mentally incompetent, and appointed a guardian. Mr. Barnabee qualified as guardian and acted as such until on or about June 25, 1908, at which time the probate court made an order discharging the guardianship. Mrs. Longenecker refused to recognize the quitclaim deed and the contract, and this litigation resulted.

It is conceded that the decree correcting the mistakes in the descriptions of land other than the 40 acres relating to Mrs. Graham, should stand. Mrs. Graham insists that she should be decreed to be the’ owner of the 40 acres and that the contract made between her mother and herself should stand.

Counsel say in the brief:

“The disputed issues included in the portion of the decree not consented to are those involved in the controversy between Margaret Longenecker and the defendants. They are:

“First. Was Margaret Longenecker mentally competent to enter into an agreement adjusting the claim of Sarah E. Graham on or before September 15, 1905, and to carry out that agreement September 15 and 23, 1905?
“Second. Did Margaret Longenecker voluntarily make such agreement and was its fulfillment voluntary on September 15 and 23, 1905?
“Third. Were the transactions of September 15 and 23, 1905, void for want of consideration or by reason of fraud or duress?
“Fourth. Were the deed and agreement of September 15 and 23, 1905, subsequently confirmed and ratified by Margaret Longenecker, Adam Longenecker, and Benjamin Longenecker by the agreement of October 25, 1905? * * *
“Sixth. After her release from guardianship did Margaret Longenecker recognize Sarah E. Graham’s right to the land in question by her refusal to allow her tenant to cultivate it and by giving her written consent to let Mrs. Graham lease said land ?”

The first three of these propositions may be discussed as one.

The record shows that Mrs. Margaret Longenecker, who was then upwards of 70 years of age, had been very ill during 1905. It also shows that after her husband had procured Mr. Wilcox to make the deed he procured Mr. Kingsley to make another one of the 40 acres to Mrs. Graham and caused the Wilcox deed to be burned. It also appears that Mr. and Mrs. Graham insisted this change was not the act of her father, but charged it to one or more of the brothers of Mrs. Graham, and following this claim they procured the quitclaim deed and money from Mrs. Longenecker.

The testimony of Mrs. Margaret Longenecker and of Mr. and Mrs. Graham as to what occurred at the house of Mr. Ernst just before Mrs. Longenecker made the quitclaim deed, is conflicting.

The testimony of the Misses Ernst is illuminating. We quote the material parts of the testimony given by Lillian Ernst:

“I certainly recollect in the month of September, 1905, of Mrs. Longenecker visiting at onr house in Mendon. She came the 15th of September. She came just to make her visit that she usually makes about twice a year. My sister married her son George Longenecker. While Mrs. Longenecker was staying at our house on that occasion, Mr. and Mrs. Graham came there. I imagine about half past 2 o’clock or about 2 on the 23d, Saturday. Mrs. Longenecker was sitting by the window looking out and said, 'There comes Lew and Sadie, I wonder what they are coming for.’ They came into the house. They said they had come to take grandma home. She said she was not ready to go home. She told them she was not ready to go. They came in and were as pleasant and nice as could be. Talked about everything and about our work and about the weather and everything of that sort and wanted to go out to the garden and look at the flowers and we went out in the garden and walked around there. They were as nice as could be until it began to get dark, then they wanted she should go home with them and we told them she had just come and her visit was not out and we wanted to keep her as long as we could, and when they saw she was not going that way they simply tried to force her to go. They asked if they could have a private room where they could talk with her. My sister was in the parlor unable to leave her chair, she had been very sick, and there was no door between the parlor and sitting room, and I told them they could go into the dining room if they liked, if it was necessary, and they went into the dining room and closed the door. We heard nothing but loud, angry voices, talked loud in a threatening way until we were very much frightened too. We could only distinguish one sentence. We distinctly heard him say: 'If you don’t do it I will ruin the boys.’ Graham said that. There was no one else in the house with us except Mr. and Mrs. Graham and Mrs. Longenecker. I should judge they remained in the room about 15 or 20 minutes. When they came out of the room Mrs. Longenecker had been crying, and she was very much upset and was nervous. She could hardly walk. When she came out of the room she said, T will have to go home with them. They told me if I didn’t go they would ruin the boys.’ At the time she said that Mr. and Mrs. Graham were in the dining room and the door was open, and they came out behind her. I think they were near enough so they could hear what she said. When they came out of the dining room and Mrs. Longenecker concluded to go home with them I imagine it was quite a bit after 4 o’clock, getting dark in September between 4 and 5.”

Dora Ernst testified substantially the same.

Mrs. Longenecker testified that the Grahams threatened her:

“Then he told me that he wanted me to give him a deed of the land and that he would ruin my boys if I didn’t. In the first place I said I wouldn’t and declared I wouldn’t. At last I gave up to him and told him I would give it to him if he would let the boys alone. I told him he was not entitled to it. I was excited and crying while I was in the room there. The Ernst girls were in the other part of the house, but they heard. The door was closed between us, but they heard all about it, or something about it. You can ask them. After remaining in the room for some time I went home with them. We got home about night. They were living in Leonidas at that time. They kept dinging about it, they said they wanted to have that. Lew Graham said he knew it was meant for him and his wife, that her father meant it so, and that was not true. When he said he knew her father meant it so I said I knew he didn’t. They made threats after they got to their home. They didn’t just threaten, of course. I suppose they would have. I just stuck to it and said I wouldn’t do it. I finally signed the quitclaim deed to Mrs. Graham, of course, I had to sign it.”

Mr. Graham and his wife deny there was loud talking.

Mr. Graham testified in part:

“There was no loud and angry talk there on my part and the part of my wife. ' I did not say to Margaret Longenecker, Tf you do not do it we will ruin the boys,’ I did not say it in that way. I said if she did not want to do it, it might ruin the boys. I simply told her we would test out that deed just as she said it was. * Í& *
“Q. Why was it necessary for you to say to her there at Ernst’s if she did not do it, it might ruin the boys?
“A. Because we made up our minds we would have it just as she wanted it, and have it done there and while I could show just what I knew about it being changed. While there at Ernst’s she did not refuse to sign the deed, she did not refuse until the next day and didn’t refuse at Ernst’s place.”

Mrs. Graham testified in part:

“I don’t know as Mr. Graham was angry while in the dining room. He was angry at being treated the way we were about our grocery bill, most any one would be. He was angry at my brother. I don’t think h.e talked in a loud and angry voice to my mother. While in the dining room I think Mr. Graham said to my mother, ‘If you don’t do it we will test those deeds and that might ruin the boys.’' Those are the words tie said. When he said it might ruin the boys I don’t know what my mother said.”

There was much other testimony which it is not necessary to quote. It will be observed that the Grahams were asserting a claim contrary to the writings made by Mr. Longenecker, and contrary to the testimony of their witness, Mr. Wilcox. We think it clear these papers were obtained from Mrs. Longenecker under such circumstances they ought not to .stand. See Seeley v. Price, 14 Mich. 541; Wartemberg v. Spiegel, 31 Mich. 400; Crawford v. Hoeft, 58 Mich. 1 (23 N. W. 27, 24 N. W. 645, 25 N. W. 567, 26 N. W. 870); Finegan v. Theisen, 92 Mich. 173 (52 N. W. 619); Smith v. Cuddy, 96 Mich. 562 (56 N. W. 89); Lockwood v. Lockwood, 124 Mich. 627 (83 N. W. 613); Sands v. Sands, 112 Ill. 225; Norton v. Norton, 74 Iowa, 161 (37 N. W. 129).

• We now come to the question of ratification. The .agreement of October 25, 1905, was made while the .guardianship proceedings were pending and which re-suited in an adjudication that Mrs. Longenecker was mentally incompetent. What followed after the guardian was discharged does not amount to a ratifi- . cation which should bind the parties.

The decree is affirmed.

Steere, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


author: Steere, C. J.

text:
    TISMAN v. TISMAN.
    1. Divorce — Bill of Review — Newly Discovered Evidence.
    On the ground of newly discovered evidence, complainant in divorce proceedings is entitled to present a petition for leave to file a bill of review more than one year after the entry of an adverse decree, the question being governed by the exception stated in Chancery Rule 27, which requires such petition to be filed within a year, except for newly discovered evidence or on sufficient cause shown.
    2. Same — Petition foe Leave to File Bill of Review.
    The granting or denial of a petition for leave to file a bill of review is discretionary and may be reviewed only for abuse of discretion.
    3. Same.
    Where complainant, a widow, married defendant on acquaintance of about one day, and immediately following the ceremony returned to Chicago, where she had been living, to dispose of her effects, remaining for several months, and becoming estranged from her husband, who later filed a bill for divorce, and made a complete settlement and satisfaction of the claims of complainant to his property to induce her to withdraw her defense, and where a divorce was denied in that cause but subsequently granted to' tbe husband on a cross-bill that be filed in ber suit for separate maintenance, it was not an abuse of discretion to deny complainant’s petition for leave to file a bill of review based on tbe discovery of evidence of adultery committed by tbe busband, tbe testimony showing that be bad remarried since tbe entry of tbe decree, and that no equitable considerations required tbe interposition of tbe court.
    Appeal from Wayne; Hally, J.
    Submitted April 11, 1913.
    (Docket No. 42.)
    Decided July 9, 1913.
    Bill by May Tisman against George F. Tisman for separate maintenance. Defendant was granted a divorce on his cross-bill charging extreme cruelty. From an order denying complainant’s petition to file a bill of review, she appeals.
    Affirmed.

      McHugh, Gallagher & McGann (Gustav E. Beerly, of counsel), for complainant.

      Joseph W. Donovan, for defendant.
   Steere, C. J.

In this suit complainant has appealed from an order of the Wayne county circuit court in chancery, dated January 7, 1913, denying her petition for leave to file a bill of review in a suit instituted by her on January 27, 1911, against defendant for separate maintenance, charging him with nonsupport, extreme cruelty, and adultery, and in which, on October 27, 1911, her bill was dismissed and a decree for divorce granted to defendant George F. Tisman on his cross-bill charging her with extreme cruelty. At the time this petition was filed, on December 7, 1912, over a year after the parties had been divorced, defendant had remarried and was living with his third wife and a child by a wife who preceded complainant in their-home in Detroit.

The matrimonial alliance between complainant and defendant appears to have been a ease of married in haste to repent in haste. They first met March 21, 1909, were joined in the bonds of holy matrimony March 22,1909, went to a ten cent theater, drank some beer together after the wedding, at her suggestion, and separated that afternoon, temporarily as was then supposed, and never lived or cohabited together as husband and wife. The respective ages of the parties are not disclosed, but each had been previously married. Their meeting was brought about through the supposedly kindly offices of a mutual acquaintance and his wife, who, being advised that each was inclined to matrimony, arranged for the parties to meet at their house, calling complainant from Chicago for that purpose by a letter stating that they had a prospective husband for her.

Complainant was a widow, residing in a flat in Chicago, where she had some furniture and other personal property. After her marriage she hastened back the same day, with consent of defendant, avowedly to dispose of her property there preparatory to changing her residence to live with him in Detroit. Her next appearance in Detroit was on June 10, 1909, when an interview between the parties, the circumstances of which are in dispute, resulted in their permanent estrangement and subsequent divorce proceedings.

On March 23,1909, the day after she left, defendant wrote complainant, in reply to a letter from her, urging that she “rush things as much as possible” and return; that his daughter was ill and he was anxious for complainant to come and care for her. He wrote her again urging her to return on March 26th, April 2d and 5th, saying in the last letter:

“Now, if you can’t get here by Saturday, April 10, I will have to hire a housekeeper. Let me know by return mail, but it is to be hoped that you will be ready to start for Detroit by the time this letter reaches -TA11 99

On April 10th. he wrote that he had not seen or heard from her, not to sell her property, and that he did not want to hear from her again. On April 14th, in reply to a letter from her, he wrote:

“Your conduct has been such that I never could forget the unkind love that you have showed toward my child when it was sick and I begged of you to come and look after her.”

In the meantime he hired a housekeeper with whom it is charged he became criminally intimate, to which fact his subsequent conduct and rejection of complainant is ascribed. Complainant’s frequent letters to him explaining and excusing her delay in returning did not placate him, and on April 21, 1909, he wrote in reply to a letter from her:

“I have the most bitter feeling toward you, so save your time and postage as I don’t want to hear from you any more.”

On June 10 or 11, 1909, complainant went to Detroit to the house of the friends who had introduced her to defendant and from there went and interviewed him; matters were talked over between them; she claims he agreed to receive her as his wife and shortly thereafter declined to do so, réfusing to give her even enough money to pay her fare back to Chicago. He claims she made a demand on him for money; that he told her his home was open to her; but she demanded a settlement and stated she had arranged’ with her Chicago lawyer to attend to it for her if necessary, whereupon defendant refused to comply with her demands or to support her. That an adjustment on a financial basis was under discussion is evident. She testifies:

“I then offered to live with him as his wife. * * * He said to me, ‘Will you sign the-papers for $50 or $75?’ and I said, ‘No.’ A few minutes later he said, ‘.Will you settle for $50?’ and I said, T will not settle until I think this thing over;’ and- then he said he would see me next day. I took the train back that night for Chicago.”

On August 3,1909, defendant filed a bill for divorce, with an affidavit of complainant’s nonresidence, preparatory to proceeding by substituted service, when she, learning of this suit, returned to Detroit and employed counsel to protect her interests. She was thereafter personally served, in Detroit, with a certified copy of the bill of complaint, affidavit of nonresidence, and order of publication. She appeared in the suit, by her solicitor, filing an answer, cross-bill, and petition for temporary alimony.

While complainant was in the city of Detroit, negotiations were entered into between the parties for a financial settlement of their matrimonial affairs; each being represented by counsel. As a result a stipulation of settlement was entered into on August 11,1909, signed and accepted by the respective parties and their solicitors, providing for the payment to her of $150 in full of all her claims against defendant in said cause. She also at the same time signed a release of—

“All her claims against said George F. Tisman for past, present, and future support and maintenance, as his wife, and likewise all her claims of dower in and to any and all property now owned, possessed, and held, legally, equitably, or otherwise,, or which may be hereafter owned, possessed, and held, by said George F. Tisman, and likewise all her claims of every kind, nature, and description whatsoever, past, present, or future, against said George F. Tisman, as his wife, or otherwise.”

This instrument was approved and witnessed by the solicitor who represented her at that time, and who appears for her in this cause; who also, as a notary public, took her acknowledgment of its execution.

Though these papers were signed and acknowledged on August 11, 1909, it is conceded that a complete settlement was not reached until October. She went back to Chicago in August and- returned to Detroit in October, at which time she withdrew her answer and cross-bill to defendant’s bill for divorce and was paid the money previously agreed upon. She left for Chicago the same day, believing, as she states, that “matters were so situated that he could get his divorce.” He endeavored to do so, but, after hearing the case, the court dismissed his bill on March 3, 1910.

Although defendant had previously advised complainant to save her postage, as he did not want to hear from her any more, she manifestly wrote him further, and on June 5, 1910, in answer to a letter from her, he wrote that he was “sorry that we have had such trouble, * *' * and, if you want to sell your, furniture and come on and live with me, all well- and good and I will try and do my part.” Complainant thereafter went to Detroit and called at defendant’s home, which she.found in charge of a housekeeper, who did not give her a cordial reception. An interview with defendant terminated without reconciliation. She testifies to offering to live with him as his wife and care for his home, but that, owing to his relations with and the influence of his housekeeper, he rejected her. He testifies that, after writing the letter on June 5th, he had thought it over, and, remembering how she had acted, he telegraphed her not to come, but she came right on, and, after an interview in which she proposed conditions which were not acceptable, he declined a reconciliation. She thereupon went back to Chicago and on January 27, 1911; returned to Detroit and filed her bill of complaint against defendant for separate maintenance, which resulted, whether rightfully or wrongfully, in her «bill being dismissed and defendant being granted a decree of divorce on his cross-bill as stated. On the hearing of this suit it was charged, and testimony was introduced by complainant to show, that defendant was guilty of adultery with his housekeeper, whom he had employed shortly after he was married to complainant owing to failure of the latter to return when expected. Complainant had subpoenaed this housekeeper as a witness, but she failed to answer the subpoena, and an officer with an attachment was unable to find her. Defendant positively denied any improper relations with the housekeeper or any knowledge of where she was at the time of the hearing.

After obtaining his divorce, defendant lost little time in securing another wife. The housekeeper objected, and claimed he had promised to bestow that honor upon her as soon as he was free from his previous entanglements, and, when he married another, came from under cover with the proverbial fury of the woman scornéd, and furnished complainant’s solicitor with an affidavit of defendant’s perfidy which, if true, brands him as a low and licentious criminal and perjurer. On the strength of this affidavit complainant applied for a rehearing on October 16, 1912; the decree having been granted October 27, 1911. This application was heard before another judge of the Wayne county circuit court,, in chancery; the judge who granted the decree of divorce having in the meantime retired from the bench and become solicitor for defendant. In denying the petition the court said:

“This petition has been filed to set aside that decree and grant a rehearing. The petitioner has presented a very strong affidavit which would be entitled to very grave consideration were it not for the intervening rights of an innocent third party. Since the decree was given, the defendant has remarried and is now living with this wife. It should be a very extraordinary situation which would justify a court in disturbing this relation .because of the consequent injustice to one who was not a party to the above proceeding. Such a situation does not now exist, and the prayer of the petition will be denied.”

Thereupon, on December 7, 1912, this petition for leave to file a bill of review was filed and denied on January 13, 1913. From the order of denial this appeal is taken.

Complainant’s counsel proppse and argue, as material and controlling in this case,'the three following questions:

(1) Does complainant possess the legal right at this time, and under the circumstances of this case, to file a petition for leave to file bill of review?
“ (2) Does the settlement, as made with complainant, constitute an equitable division of her husband’s property, and a fair, just,^and suitable provision for her, in lieu of her dower and other claims against her husband’s estate?
“(3) Are the facts, as established in complainant’s petition for leave to file bill of review, such as to entitle her to file and maintain a bill of review?”

As to the first question, it is contended by counsel for defendant, as a matter of law, under Chancery Rule 27 and Act No. 299, Pub. Acts 1909, limiting the time of appeal, that the court has no power to entertain a petition for leave to file a bill of review at this time. This is not an appeal from the decree rendered herein but from the order denying complainant’s petition. It was taken within the requisite time after the order denying such petition was rendered. Rule 27 limits the time for filing a bill of review to that allowed for bringing an appeal, “except upon newly discovered facts or evidence, unless upon reasons satisfactory to the court.” This petition is based 'chiefly on the claim of newly discovered evidence. The rule is reviewed in Barnes v. Kent Circuit Judge, 97 Mich. 212 (56 N. W. 599), and construed more or less in Stockley v. Stockley, 93 Mich. 307 (53 N. W. 523); Sheldon v. Hawes, 15 Mich. 519; Mickle v. Maxfield, 42 Mich. 304 (3 N. W. 961); Clark v. Huron Circuit Judge, 40 Mich. 166; Thompson v. Jarvis, 40 Mich. 526; Ryerson v. Eldred, 18 Mich. 490; Id., 23 Mich. 538; Taylor v. Boardman, 24 Mich. 287; Id., 25 Mich. 527; Case v. Case, 26 Mich. 484; Moote v. Scriven, 33 Mich. 500; Brewer v. Dodge, 28 Mich. 359; Maynard v. Pereault, 30 Mich. 160; Sanford v. Haines, 71 Mich. 116 (38 N. W. 777); Dodge v. Northrop, 85 Mich. 243 (48 N. W. 505); Noeker v. Howry, 119 Mich. 626 (78 N. W. 669).

In Sanford v. Haines, supra, it is said:

“Under the rules, a bill of review should be filed within the time allowed for appealing, unless on newly discovered evidence, or when there has been some reason that is satisfactory for the delay.”

Of the right of complainant to file and the court to pass upon the petition for leave to file a bill of review, there can be no question.

The granting or denying such petition was, however, a matter of discretion with the trial court. Farmers' Bank v. Quick, 71 Mich. 534 (39 N. W. 752, 15 Am. St. Rep. 280); Barnes v. Kent Circuit Judge, supra; Knapp v. Perry, 117 Mich. 97 (75 N. W. 1135); 16 Cyc. p. 523.

In Stockley v. Stockley, supra, it is said:

“An application for leave to file a bill of review is the method employed to obtain a rehearing and to vacate a decree after its enrollment; but the results to be attained, and the facts properly to be considered, are the same as though it were a motion for a new trial, or a motion for a rehearing and to vacate a decree before its enrollment, and in like manner it addresses itself to the fair discretion of a court. In passing upon it, each case stands by itself, and is controlled by the circumstances surrounding it, and without reference to any other case. The power of the court in granting or denying it is largely discretionary, and is always to be exercised in view of the peculiar circumstances of each case, so as to effectuate substantial justice, and protect the legal and equitable rights of the parties. Unless this principle has been violated by the circuit judge through an abuse of the fair discretionary power with which he is invested, his decision should not be disturbed.”

The inquiry is, therefore, whether the record discloses such an abuse of discretion as demands a reversal.

Complainant’s second contention is that the settlement entered into in August and consummated in October, 1909, at the time she withdrew her answer and cross-bill to defendant’s bill for divorce, does not constitute an equitable division of her husband’s property and a just provision for her in lieu of dower and other claims against his estate. While that question is involved consequentially, it is not a proper ground for filing a bill of review at this time; no newly discovered evidence upon that subject is disclosed. There is no showing that the settlement was obtained by fraud or deceit or that defendant had more property than complainant then supposed. He is shown to be a workman engaged with the Detroit Woodoleum Company, “making borders around rugs.” At the time this suit was heard, he was earning $25 per week, but when he started at the work earned much less. He had bought a house and lot upon contract, on which he had paid $1,365, and yet owed about $1,000. He had one child, a girl about 9 years old. He is not shown to have been especially thrifty or prosperous. From time to time he borrowed small sums from his employers, and on August 11, 1909, when the settlement between these parties was pending, he borrowed $170. At that time complainant was in Detroit with full knowledge of his circumstances, so far as shown. She had employed counsel, appeared and filed an answer and cross-bill in defendant’s divorce suit. She had taken ample time to "think this thing over.” With everything ready to push this case to a final hearing and have her rights determined, she voluntarily made a full settlement of all her claims against defendant, with her counsel present to look after her interests and witness the papers she signed. When the amount agreed upon was paid, she withdrew her defense and left for Chicago at once, expecting and believing that, as a result of her action, their relations were ended and “he could get his divorce.”

That an unsuccessful attempt was later made to get together and assume the relations of man and wife does not defeat the validity of their contract of settlement, advisedly entered into, even though his ultimate refusal was the cause of its failure. Her subsequent suit for separate maintenance was not the result of any improvement in his financial condition, or any new discovery in that particular, but manifestly arose from his unexpected failure to get a divorce from her as they had arranged for and anticipated, followed by his vacillating and irritating conduct in accepting and rejecting her overtures. No impelling, equitable considerations arise in her favor. What rights she had were strictly legal rights arising from the bare fact of the marriage ceremony. They met for the first time one day, were married and separated the next, and never lived together as husband and wife. She did nothing for him, and he did nothing for her, after they separated, except to pay what was wrung from him by litigation. It can fairly be said, from this record, that neither of them entered into this hasty betrothal and practically contemporaneous, off-hand matrimonial alliance actuated by any worthy sentiments of regard or affection for each other. The record indicates that it was a money matter with her, and with him the temporary whim of one whose “unkind love” for the opposite sex is manifestly fervent but extremely migratory. Neither comes before the court with clean hands, and neither presents any claim for relief from nuptial disaster which specially appeals to the tender consideration of a court of equity.

It is asserted by counsel for defendant that “the record presented shows but a meager part of what was heard hefore Judges Rohnert and Hally or at the three days’ hearing.” This record is made up of the pleadings, decrees, and orders of the court, the petition with certain affidavits attached, and such portions of the testimony as complainant’s counsel saw fit to make a part of the petition, together with the answer of defendant to said petition.

The subsequently obtained affidavit of Mrs. Harriet Alice Reed, defendant’s discarded housekeeper, setting forth his criminal relations with her and conduct in preventing her from responding to a summons from the court to appear as a witness, is most seriously urged as a controlling factor which it is an abuse of discretion to disregard. It points to conduct on the part of defendant and deponent proper for investigation in the criminal courts^ if substantiated; but in this suit between private parties, and under the facts disclosed, we are not satisfied that a court of equity must necessarily, at this time, entertain a bill of review to set aside a settlement understandingly made on a business basis so long before. The affidavit is by a self-confessed particeps criminis. The source, time, cause, and motive of making and presenting this affidavit, as well as the extent to which it should move the court at this time and in this case, if true, are all proper elements for consideration by the trial court, and we are unable to conclude that court, which dealt with the case in its entirety, has so abused its discretionary powers as to demand a reversal of its order denying leave, at this time, to open the case and file a bill of review.

The order of denial is affirmed, but without costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


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    FREDRICK v. WILLIS.
    Mechanics’ Liens — Evidence—Defective Work.
    In the absence of competent testimony to show tbe cost of remedying defects in tbe construction of a bouse, tbe opinion of tbe trial court, who found from tbe testimony and a view of tbe premises that tbe contractor bad substantially complied with bis contract and was entitled to recover nearly all tbe price provided for, will be affirmed, and defendant’s suggestion and request that tbe cause be referred back for additional proofs, is overruled.
    Appeal from Wayne; Donovan, J.
    Submitted October 14, 1912.
    (Docket No. 21.)
    Decided July 9, 1913.
    Bill by George H. Fredrick and another against Martha Willis and others for the enforcement of mechanics’ liens. From a decree for complainants, defendant Willis appeals.
    Affirmed.

      Andrew C. Paterson, for complainant.

      James H. Pound, for defendant.
   Moore, J.

The bill of complaint in this case is filed by George H. Fredrick and Edward C. Bleich, the contractors, and cross-bills are filed by Ternes Coal & Lumber Company, materialmen, and John P. Berry Company, a subcontractor, to foreclose their respective liens on property of Martha Willis for labor and materials furnished for the construction of a house on her real estate in the city of Detroit.

The contract is a written one, but was so carelessly drawn that, it is not surprising that it gave rise to controversies. The contract price for the house was $2,084. The contractors were not to furnish any paint or do any painting or finishing of the woodwork, Mrs. Willis agreeing to do the painting, and to finish the woodwork. The work was commenced in December, and was prosecuted during the Winter months. It is claimed the house was completed about March 10, 1910, excepting some things that were left to be done after the frost was out of the ground. It is claimed by complainant that extra work was done of the value of $48. The contract was unusual, in that it did not require Mrs. Willis to make any payments until the house was completed. Controversy arose between the parties. Mrs. Willis commenced proceedings before a circuit court commissioner to get possession of the house, and when Mr. Fredrick found, on April 23, 1910, a notice from the circuit court commissioner tacked on the door of the house, summoning him and Mr. Bleich to appear in the office of the commissioner, the 22d day of April, 1910, he sent the keys of the house to Mrs. Willis, who took possession of the house on or about April 28, 1910, and has occupied the house ever since.

' The defendant Mrs. Willis claims defective construction and inferior materials used in the building, while complainant claims that, if. the woodwork had been painted in due time and properly finished, there would have been little cause for complaint. After hearing the testimony, the trial judge visited the premises, and, making an examination of the building, he rendered a decree in which he sets off the claim for extras and deducts an additional $30 from the contract price, $2,084, for deficiencies in construction, leaving a balance of $2,054 and interest, and on May 13, 1911, granted a decree allowing the complainants a lien for $2,108.87, and John P. Berry Company a lien for $52.50. Mrs. Willis has brought the case here by appeal. Her solicitor urges that the house be removed from the real estate; or, if this is not done, that a rebate of $500 be made because of defective construction.

One of the special grievances of the defendant Mrs. Willis is that she did not get the furnace described in the written contract. The record discloses by a fair preponderance of testimony that a neighbor of hers was selling a different make of furnace from that mentioned in the contract, and urged her to buy his furnace, and the change was made with her knowledge and approval. The trial court had the great advantage of inspecting the premises. The questions involved are questions of fact. While Mrs. Willis claimed grave defects, she gave no satisfactory testimony as to what it would cost to make these defects good. What testimony was offered upon that subject was hearsay.

Counsel for Mrs. Willis recognize this may be urged, and suggest that, if the evidence is not clear enough in that regard, the case should be referred back to the trial court to take additional evidence. This suggestion does not appeal to us. The complainant has put his labor and material into this building, claiming a compliance with his contract. The circuit judge, after inspecting the premises, finds there was a substantial compliance with the contract. The defendant has had the use of this building since April, 1910, without making any payment thereon. We have a record of more than 200 printed pages. There was ample opportunity for Mrs. Willis to show what it would cost to make good the alleged defects, if any existed. As before stated, the trial court not only listened to the witnesses, but saw and examined the building. An examination of the record has not satisfied us he erred in the decree rendered.

The decree is affirmed, with costs.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


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    TWIN CITY CREAMERY CO. v. GODFREY.
    1. Damages — Contracts—Provisions in Lieu of Damages.
    If parties agree upon a rule of damages to be followed in the event of a breach of the contract, no different rule or measure»will be adopted by the court.
    2. Same — Sales—Liquidated Damages.
    Under a contract providing for thé installation of a refrigerating plant, which the vendor guaranteed to be free from imperfections for the space of one year, promising to replace defective parts, etc., and further providing that if the plant should not fulfill the conditions of the contract, the vendor should be allowed to enter the buyer’s premises, upon repaying the money paid, and to remove the plant, no different measure of damages than such repayment and removal was contemplated, the vendee not being entitled to recover damages suffered by reason of defendant’s failure to install a satisfactory refrigerating system.
    Error to Berrien; Bridgman, J.
    Submitted October 17, 1912.
    (Docket No. 122.)
    Decided July 9, 1913.
    Assumpsit by the Twin City Creamery Company against Charles H. Godfrey and Ephraim L. Brant for breach of a written contract. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Willard J. Banyon and G. M. Valentine (H. S. Gray, of counsel), for appellant.

      Cady & Andrews, for appellees.
   Bird, J.

On January 15, 1910, Godfrey and Brant, the defendants, entered into a written contract with the Twin City Creamery Company, the plaintiff, to furnish and install in perfect working order a refrigerating plant in its factory at Benton Harbor and have it completed and ready for operation by May 1, 1910. The plant, when installed, was warranted to produce certain results. The work was delayed, and the plant was not completed until August 1st, at which time it was tendered to the Creamery Company, and acceptance was refused on the ground that it failed to produce the results guaranteed. Payment therefor being refused, Godfrey and Brant brought suit to enforce the same. A trial in the circuit court was had, and resulted in a verdict for the Creamery Company. With this issue resolved in its favor, the company, by written' notices, dated February 27, and March 2, 1911, ordered Godfrey and Brant to remove the plant from its premises. This order was complied with and the plant removed. The Creamery Company then brought this suit against the defendants to recover damages for their failure to install the plant in accordance with the terms of the contract. At the trial of this issue it was the opinion of the trial court that under the proofs the plaintiff was not entitled to recover, and he, therefore, directed a verdict for the defendants. Various reasons are advanced by defendants in justification of the directed verdict, and among them the point is made that the parties agreed in the contract upon a measure of damages, in the event that defendants should fail to carry it out in accordance with its terms, and that now no other or different measure of damages can be invoked. The following paragraphs of the contract are relied upon to establish this proposition :

“It is further understood and agreed that the party of the first part guarantees the said plant to be free from imperfections in materials and workmanship for the period of one year from the date of this contract and said party of the first part agrees to replace any such part or parts found defective by said party of the first part, during the aforesaid time.”
“It is further understood and agreed that providing said plant does not fulfill the conditions of this contract, said party of the first part shall be allowed to enter the premises of said party of the second part and remove the said refrigerating plant without any hindrance in any manner upon the refunding of any money which has been paid to-the party of the first part by the party of the second part.”

We must assume that the foregoing provisions were inserted in the contract to mean something, and, fairly construed, they mean that the. parties agreed in advance upon the measure of damages which should govern in the event that the plant, when completed, did not measure up to the specifications contained in the contract. This measure of damages, read in connection with other provisions of the contract, means that if defects appeared in the materials or workmanship of the plant within one year from the date of the contract, the defendants were in duty bound to correct them. If the plant did not meet the stipulations in the contract, the defendants were to remove it after refunding any payments made thereon. Under this agreement, the plant was constructed, and it fell short of doing what was promised-for it. An attempt was made by defendants to remedy some of the defects, but the Creamery Company would not permit it. The defendants were then ordered to take it away, and the order was obeyed. The rule agreed upon has been followed so far as the rights of the plaintiff are concerned, and we are of the opinion that no other damages were contemplated. Where parties agree upon a rule of damages to be followed in case of a breach of an agreement, no other or different rule will be enforced. Monroe v. Hickox, Mull & Hill Co., 144 Mich. 30 (107 N. W. 719); Black v. De Camp, 78 Iowa, 718 (43 N. W. 625); Canavan v. Neeld, 189 Pa. 208 (42 Atl. 115); 35 Cyc. p. 633.

We are of the opinion that the trial court was not in error in directing a verdict for the defendants.

The judgment will be affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.