text:
    O’CONNOR v. KEENAN.
    1. Mortgages — Foreclosure—Sale in Parcels.
    A statutory mortgage foreclosure sale of three lots, occupied by three distinct and separate tenancies, as one parcel, is void, although there was a fence around the entire tract.
    2. Partition — Mortgages—Foreclosure—Parties.
    Under 3 Comp. Laws, § 11020, relating to the partition of lands, a mortgagee has a right to sell lands during partition proceedings therefor, and, upon failure to redeem, to become a party to the partition proceedings.
    3. Same — Void Sale — Resale.
    Where a mortgage sale of lands pending partition proceedings is held void for failure to sell in parcels, the mortgagee should be permitted to resell upon failure to redeem within a time to be specified in the decree.
    Appeal from Wayne; Frazer, J.
    Submitted February 18, 1903.
    (Docket No. 90.)
    Decided April 7, 1903.

      Bill by Timothy O’Connor, trustee, against William J. Keenan and others, for a partition of certain lands. After a decree for partition, J. Ward Howland, executor of the last will and testament of John Ward, deceased, petitioned to be made a party, claiming as purchaser at certain mortgage sales; and from a decree declaring the sales void he appeals.
    Modified.
    One ITonora Keenan died intestate October 13, 1896, seised of certain lands, and leaving as her sole heirs at law four children, William J., Michael J., Thomas P., and Mary Ann Danaher. Mrs. Danaher died December 1, 1896, leaving a will by which she devised her one-fourth interest in these lands to complainant, Timothy O’Connor, in trust for her three children. He filed this bill February 3, 1898, to secure a |jartition of the lands. Thomas P. died June 7, 1897, intestate. His one-fourth interest thus passed to his two brothers and the children of his sister, subject to a mortgage'of $300. Michael J. executed five mortgages on his one-fourth interest, aggregating $1,175. He died November 20, 1899, leaving a widow and two children. Decree for partition was entered April 17, 1900. On March 12, 1900, one Mary E. Barnard, the mortgagee of the above mortgages, commenced foreclosure, by advertisement, of the Thomas P. Keenan mortgage and the last of the Michael J. Keenan mortgages. Sales were had, and the mortgaged interests were bid in by Charles Amsden and J. Ward Howland, executors of the will of John Ward, deceased. The lands were sold in three parcels, the third parcel being described as follows: “Lots 17, 18, and the southerly 40 feet of lot 16 of the subdivision of that part of private claim 10, occupied as one parcel.” The parties did not redeem, and, after the expiration of the time of redemption, Mr. Howland, as surviving and sole executor, presented to the court his petition under 3 Comp. Laws, § 11020, reading as follows:
    “If, at any time prior to the confirmation of the report of the commissioners appointed to make such partition, any person * * * who has acquired a title in fee to any part of said premises by virtue of any mortgage or execution sale of any interest thereon shall apply to the court by petition setting forth his interest in the premises, the court shall thereupon direct that such person be made a party to such proceedings, and shall make such other or further orders and decrees respecting the rights of such person as shall be agreeable to equity. ”
    The petition was resisted by defendants for the following reasons:
    “ i. The defendant Barnard had no right to foreclose her mortgages, because she was a party to the cause. She must wait the end of the partition suit, and only enforce her securities, then.
    ‘ ‘ 2. The defendants claimed that Mr. Howland had verbally agreed to extend the time for redemption.
    ■ “ 3. Lots 1?, 18, and the southerly 40 feet of lot 16 were improperly sold as one parcel, and for that reason the foreclosures were void.”
    The court sustained the third contention, set aside the foreclosure sales, and admitted Howland as a defendant as mortgagee only.
    The statute governing foreclosure sales reads as follows':
    “If the mortgaged premises consist of distinct farms, tracts, or lots not occupied as one parcel, they shall be sold separately, and no more farms, tracts, or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest, and the costs and expenses allowed by law; but, if distinct lots be occupied as one parcel, they may in such» case be sold together.” 3 Comp. Laws, § 11139.
    Aside from the three distinct descriptions contained in parcel 3, the' record discloses that on each separate lot were a house and outbuildings inclosed by fences running back about 150 feet; that each house and the land connected with it by fences, and by plowed ditches extending from the fences to the rear end, was occupied separately by tenants, and the entire parcel 3 was inclosed by fences. Mrs. Honora Keenan purchased these lots by three different deeds at different times, and from three different parties. The description in the first deed was lot 18 and the southerly 20 feet of lot 17, that in the second deed was the northerly 60 feet of the southerly 80 feet of lot 17, and that in the third deed was the southerly 40 feet of lot 16 and the northerly 20 feet of lot 17. The occupancy was in accordance with the descriptions of these three deeds. Each full lot had a frontage of 100 feet. The depth of each, including the 40 feet of lot 16, was 575£ feet.

      Edward A. Barnes and U. Grant Bace, for complainant.

      Wilkinson, Post & Oxtoby, for appellant, J. Ward Howland.

      John Miner, for defendants Keenan.

      E. A.JPink, for defendants Hanaher.
   Grant, J.

{after stating the facts). We think this is not a case where the mortgagee is at liberty to ignore the statute, and sell three separate lots of land in ope parcel. They were not occupied as one farm or lot; but were occupied by three separate and distinct tenancies. It is true that these tenancies were in accordance with the descriptions in the three deeds by which the grantee obtained title, but this does not constitute occupancy as one parcel. That the intention of the owners was to subdivide the tract into city lots does not authorize a sale as one parcel. The lands were worth much more than the amounts of the mortgages. There is nothing to indicate that each lot could not be sold separately to advantage. The statute is designed to protect the mortgagor in his right of redemption. We think the sale was void under the former decisions of this court. Keyes v. Sherwood, 71 Mich. 516 (39 N. W. 740); Halves v. Insurance Co., 109 Mich. 324 (67 N. W. 329, 63 Am. St. Rep. 581).

That there was a fence around the entire parcel we consider of no significance. Such fence was necessary to the occupancy of each of the tenants. Nor is it conclusive that in the bill for partition and in the decree the lands were described as consisting of three parcels, one of which was composed of two and four-tenths lots. Such descriptions may have been proper for partition purposes, but do not control in foreclosure sales under the statute, which requires “distinct farms, tracts, or lots not occupied as one parcel ” to be sold separately.

Counsel for appellant cite and rely upon Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32), and Harris v. Creveling, 80 Mich. 249 (45 N. W. 85). In Gage v. Sanborn the suit was by summary proceedings to recover possession of lands sold upon mortgage foreclosure. The description was similar to that here, — two lots and a part of another. That holding was based upon the fact that there was no evidence to show that the lots were not adjoining and used as one parcel, and the onus probandi was upon the defendant. Harris v. Creveling was a similar case.

The decree of the court setting aside the sales is sustained.

Under 3 Comp. Laws, § 11020, the mortgagee was justified in proceeding to sell, and, upon failure to redeem, to become a party to the partition proceedings, and succeed to the rights of the mortgagors. But the sale being held void, and the proceedings prior to the sale being regular, it follows that the decree should provide a specified time for redemption, and, upon failure to redeem within that time, a resale of the premises. Huyck v. Graham, 82 Mich. 353 (46 N. W. 781). The decree, in so far as it adjudged the appellant to succeed to the mortgage interests of Mary E. Barnard, and to be admitted a defendant as the holder of such mortgage interests, does not give him any right to proceed under the foreclosure proceedings, but leaves him to new proceedings, either in chancery or by advertisement. In this respect the decree must be modified, and 60 days given within which to pay the amount due. Upon failure to pay within that time, appellant may proceed to sell under the foreclosure proceedings.

The decree will be modified and entered in this court in accordance with this opinion. The appellant will recover the costs of this court.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LANDSBERG v. TIVOLI BREWING CO.
    1. Landlord and Tenant — Holding Over — Renewal oe Lease.
    Plaintiff, shortly before the expiration of a written lease, wrote her tenant that she would renew the lease at an increased rental. Defendant’s agent replied by telephone that it could not keep the premises at the increased price, but . would take its fixtures out as soon as it could, to which plaintiff replied, “All right.” Defendant vacated the portion of the premises occupied by it one week after the expiration of the lease, and a subtenant, six weeks after its expiration. Held, that, by holding over, defendant did not become plaintiff’s tenant for another year.
    2. Same — Tenancy at Will — Notice to Quit.
    Under an arrangement that a tenant should hold over after the expiration of a written lease until it could remove its fixtures, where the rent was payable monthly, a full month’s oral notice to quit by the tenant was sufficient.
    Error to Wayne; Frazer, J.
    Submitted February 18, 1903.
    (Docket No. 91.)
    Decided April 7, 1903.

      Assumpsit by Isabella Landsberg against the Tivoli Brewing Company for rent. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Wilkinson, Post & Oxtoby, for appellant.

      Duncan C. Beath, for appellee.
   Moore, J.

The following statement of facts is taken, with a few changes, from the brief of counsel for appellant :

“The plaintiff sued the defendant for rent of a store building for the months of July and August, 1901, claiming $45 per month. She recovered judgment for $90 and costs in the justices’ courts for Detroit. 'Defendant appealed the case to the circuit court, where the jury found for the defendant. The plaintiff appeals.
“ Isabella Landsberg and her husband (since deceased ), on October 3, 1899, leased to the defendant a brick store at the corner of Grand River avenue and Buchanan street for a period of 19 months from and after October 2, 1899. The lease was in writing, in the usual form. It expired, by its terms, May 2, 1901. During the last seven months of the lease the rental was $40 per month. The ground floor of the building was occupied by McVittie & Vincent, subtenants of defendant, as a saloon, and the upstairs flat was occupied by John Mulheron, who was a subtenant of McVittie & Vincent, at a monthly rental of $10.
“On April 18, 1901, the plaintiff wrote the defendant, stating that their lease expii’ed on May 2d, and that she would be pleased to renew the lease with them at the rate of $45 per month (an increase of $5 per month), giving them a three-year lease of the same. The reply to this letter was by telephone, and involves the issue of fact which the trial judge submitted to the jury. Plaintiff testified that defendant’s seci’etary, Mr. Schimmel, called her up, and said ‘they could not afford to pay $45 a month rent,’ and that she told them she could not take less, and ‘they said they would have to keep the building, because the man that was in it owed them a great deal of money.’ Mr. Schimmel, on the other hand, testifies that what he said to Mrs. Landsberg was the following: ‘We had lost considerable money in the place, and that we could not afford to keep the place at $45; that we had lost considerable money, and we would have to drop it, and we would take our fixtures out as soon as we could. She said she had another offer at $45. I said we could not afford to pay it; we had lost considerable money in that place. She said it was all right.’
“ About May 9th (seven days after the expiration of the written lease) Mrs. Landsberg telephoned the defendant, asking why she had not received the usual check. The defendant answered that they were going to give up the premises and send down the keys. Mrs. Landsberg replied that she would not accept the keys, and that she considered them her tenants. That afternoon the keys were sent to the plaintiff by registered mail. Plaintiff, by her attorneys, at once wrote the defendant, notifying them that, as they had held over possession of the premises, plaintiff considered them her tenants at $45 per month, and would not accept a surrender of the premises, but would undertake to rent for defendant’s benefit. It subsequently developed that, although the defendant sent down the keys on May 9th, and vacated the store about that time, the subtenant, Mr. Mulheron,- remained in possession of the upstairs portion of the building until June 12th. Mr. Mulheron paid his rent for May to McVittie & Vincent, defendant’s sublessees, about May 1st. He paid no rent from June 1st to June 12th. On June 11th defendant’s attention was called to this fact by a letter from plaintiff. The subtenant, Mr. Mulheron, did not move out until about June 12th.
‘ ‘ Defendant refused to pay any rent whatever, and after rent had accrued for May and June plaintiff began suit in justices’ courts for the amount then due. The bill of particulars in that suit calls for two months’ rent at $45 per month, and also for cost of certain repairs, amounting to $27. This suit was discontinued on August 17, 1901, upon defendant paying to plaintiff the sum of $92.75, being $90 for the rent for the months of May and June and $2.75 costs. The receipt given to defendant was a receipt for two months’ rent. The premises remained vacant up to September 1st. There is no claim made that there was any acceptance of defendant’s attempted surrender of the building.
“On August 19, 1901, this suit was commenced in justices’ courts for the rent for the months of July and August, 1901, at $45 per month. At the conclusion of the' evidence plaintiff moved for a direction of a verdict, which was refused, and also presented three requests for a like direction, all of which were refused. The questions involved relate to the charge of the court, and are raised by exceptions to his charge as given and to the refusal of plaintiff’s requests. The trial judge submitted the case to the jury on the basis of the telephone conversation which was had between Mrs; Landsberg and Mr. Schimmel after receipt by him of her letter of April 18, 1901. The jury evidently found the version of Mr. Schimmel to be correct, and found for defendant.”

Plaintiff claimed on the trial and claims here that, notwithstanding Mr. Schimmel’s version of the conversation of April 18th, defendant became her tenant by holding over; that, although Mr. Schimmel testified that she said “All right ” in answer to his statement that the defendant would not renew after May 2d, and would take out their fixtures as soon as they could, the occupation of the upstairs portion of the building by their subtenant, Mr. Mulheron, for six weeks after May 2d, and after receipt by the defendant of the letters of May 9th and June 11th, and their payment of rent for two months, constituted such a holding over as made defendant a tenant for another year. The theory of defendant is that plaintiff consented to the holding over of the defendant for such time as might be necessary for the purpose of removing its fixtures; that this was not accomplished until May 9, 1901; that the estate thus created was an estate at will; that, no yearly tenancy being contemplated, and the rent payable monthly, it was such an estate as could be terminated by either party giving to the other the notice required by the statute.

Plaintiff’s counsel argue for the following propositions:

“1. The plaintiff’s right to recover was not based on the telephone conversation in April. It was based on the fact that defendant held over after May 2d.
“2. The holding over of Mulheron, the subtenant, for six weeks after May 2d, was such as to make the defendant, at plaintiff’s option, her tenant for another year.
“3. Defendant’s holding over for six weeks after receipt of plaintiff’s letter of May 9th made defendant liable at the increased rental of $45, instead of $40.”

The principal case upon which plaintiff relies is Mason v. Wierengo’s Estate, 113 Mich. 151 (71 N. W. 489, 67 Am. St. Rep. 461). As we read that case, instead of sustaining the claim of counsel it is an authority for defendant. Justice Hooker, speaking for the court, said:

“In the absence of qualifying circumstances implying consent to a holding under some new arrangement, the holding over is a legal trespass, and does not depend upon, the intention of the tenant. It is a wrongful holding, whatever the cause, though perhaps not culpable in a moral sense, and the rights of the landlord are definitely fixed by the law. This question was reviewed in Campau v. Michell, 103 Mich. 623 (61 N. W. 890), and the opinion of the court as there indicated was contrary to the defendant’s position in this case. That case was exceptional, in that the defendant’s tenant was induced to hold over by the mistake or misconduct of the plaintiff’s agent, and the doctrine of estoppel was applied. See, also, Bradley v. Slater, 50 Neb. 682 (70 N. W. 258). We think that there is uniformity in the decisions against the contention that the intention to vacate as soon as possible can affect the right of the landlord to elect to treat the holding over as a renewal of the lease for a year. It requires some express or implied consent upon his part to a holding over upon other conditions. This is wanting here.”

In the present case, according to the plaintiff’s version, she refused to renew the lease unless the tenant would pay $5 a month more than it was required to do by the terms of the written lease; and, when she refused to renew the lease for less than $45 a month, she says “the answer came that they would have to keep the building, because the man that was in it owed them a great deal of money;” thereby consenting, according to her statement, to a new arrangement from the written lease. On the other hand, the defendant claims, and the jury found by its verdict its claim to be true:

“We received this letter of April 18th. A few days following after the receipt of that letter I told her that we had lost considerable money in the place, and that we could not afford to keep the place at $45; that we had lost considerable money, and we would have to drop it, and we would take our fixtures out as soon as we could. She said she had another offer at $45. I said we could not afford to pay it; we had lost considerable money in that place, She said it was all right.”

It is very clear from the testimony of the plaintiff and the agent for defendant that neither of them understood the defendant was to continue under the terms of the written lease, but they did understand the holding over was under a new arrangement. See Campau v. Michell, 103 Mich. 623 (61 N. W. 890). Within a few days after the expiration of the written lease defendant removed its fixtures. In reply to a request from Mrs. Landsberg over the telephone, made May 9th, asking why a check had not been sent her for the rent, she was informed defendant would not continue as tenant, and would send her the keys, which they did that afternoon by registered mail. On June 11th the attorneys for plaintiff called the attention of defendant to the fact that another month’s rent was due, and that Mr. Mulheron was still in possession of part of the premises, and that there had been no surrender of possession by the defendant, and threatened to bring suit if the rent for May and June was not paid. Mr. Mulheron, on the 12th of June, vacated that part of the premises occupied by him. Later suit was brought, and the defendant, apparently recognizing that, as it occupied part of the premises until the 9th of May, and Mr. Mulheron occupied them until the 12th of June, it must pay rent for those months, on the 17th of August paid the costs of court and the rent for May and June. As the defendant, three months before this time, had sent the keys to plaintiff, and surrendered that portion of the building occupied by it, and Mr. Mulheron, two months before, had surrendered the possession he had, it is very clear this payment was not made as an acknowledgment that the tenancy continued later than June. As the jury have found that defendant held over, by the express consent of the plaintiff, until it could remove its fixtures, it became at most but a tenant at will. Benfey v. Congdon, 40 Mich. 283; Barrett v. Cox, 112 Mich. 220 (70 N. W. 446); Hilsendegen v. Scheich, 55 Mich. 468 (21 N. W. 894). See Lane v. Ruhl, 94 Mich. 474 (54 N. W. 175). If, under the arrangement, any notice was required, as the rent was payable monthly, a full month’s notice before the 2d day of July was sufficient. 3 Comp. Laws, § 9257. An oral notice was sufficient. Fratcher v. Smith, 104 Mich. 537 (62 N. W. 832), and cases cited therein. We think the record shows the tenancy was terminated, and no rent was due to plaintiff.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Carpenter, J., did not sit.


text:
    HUEBNER v. NIMS.
    School Trustees — Contractor’s Bond — Sureties—Liability op Trustees.
    Where the trustees of a school district required a contractor for building a schoolhouse to furnish the bond provided for by 3 Comp. Laws, §§ 10743-10745, and in good faith approved of the sureties, who justified that they owned sufficient property in Michigan, the trustees were not liable to one who furnished the contractor material, though the sureties were residents of Canada, and owned no property in this State.
    Error to Huron; Beach, J.
    Submitted February 18, T903.
    (Docket No. 99.)
    Decided April 7, 1903.
    Case by Julius J. Huebner against Charles S. Nims, Nelson P. Arnold, Bela W. Jenks, Matthew D. Wagner, and Joseph J. Lescyzinski for failure to exact an adequate statutory bond. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James D. May (.Robert T. Speed, of counsel), for appellant.

      Charles L. Hall and John F. Murphy, for appellees.
   Moore, J.

This is an action brought by plaintiff against the five defendants as individuals' to recover $1,361.67, the balance claimed to be due him from the firm of Ballman & Wellman, who were the contractors for building a schoolhouse. The defendants were the five trustees of the school district. The judge directed a verdict for defendants. The case is brought here by writ of error.

It is claimed the defendants are liable because they failed to take a bond or bonds with adequate sureties for the protection of the materialmen, as required by 3 Comp. Laws, §§ 10743-10745. It is not claimed the bonds were not for a proper amount or in proper form, but it is claimed the sureties were nonresidents of the State, and that the trustees had such knowledge of their not having any property in the State that they ought not to have accepted the bonds, and are personally liable to the materialmen,— citing Wells v. Board of Education, 78 Mich. 260 (44 N. W. 267), and other cases; and that their good faith in taking the bonds would not relieve them from liability.

Plaintiff’s claim is made up of a balance of $676.12 for materials and factory work furnished by him, and a claim of $685.55 for materials furnished by the Detroit Lumber Company, which claim was assigned to him. The record discloses that on or before March 10, 1900, the school board let the contract to Ballman & Wellman for the construction of the schoolhouse. Before the contract was signed, the contractors were required to give bonds. These bonds were executed by Ballman & Wellman, as principals, and by John Jay and Charles Baxter, as sureties, before Mr. Eugene Clarkson, a notary public and attorney at law at Detroit, Mich., on March 10, 1900, the sureties justifying under oath that they resided in Windsor, Ontario, but owned property in the county of Wayne, Mich., sufficient to fully cover the amount of the bonds. After being so executed, the bonds were mailed to the board of trustees at Harbor Beach for their approval. The trustees, before taking action on the bonds, sent Matthew D. Wagner, the director of the district, to investigate the matter. He went to Port Huron, and called on the architect of the building, and together they went to the office of a lawyer of that city, who had drawn the contract and bonds. A question was raised between Mr. Wagner and the lawyer as to whether the sureties owning property, as they had sworn, in the county of Wayne, made the bond signed by them a valid bond, though they were not residents of the State. Mr. Wagner was advised that, as the sureties had qualified that they had property in the county of Wayne, though they lived in Canada, their bonds were perfectly good, and the board would only do its duty by accepting them. Mr. Wagner then saw the lawyer before whom the bonds were signed, and was assured by him that the bonds were executed before him, and that the sureties justified before him, as stated in the bonds.

Mr. Wagner, upon his return to Harbor Beach, reported to the board what he had learned, and advised the board that he thought it safe to accept the bonds. The board voted to do so, and March 15th signed the contract, and sent a copy of it to the contractors. On the 16th of March Mr. Wagner wrote the sureties in the name of the school district, directing his letter to them at Windsor, calling their attention to the fact that it had the two bonds, and that it had been assured by Mr. Clarkson, the notary public, that the sureties affirmed they owned “unincumbered property in Wayne county to the value of the bonds, so we have accepted you as bondsmen. Is Mr. Clarkson’s understanding of the matter correct ? ” The contractors entered upon their work on the 19th- of March. Mr. Baxter replied to the letter of March 16th under date of March 20th, saying the notary had made a mistake, “as I have no property in Wayne county, but have property to the value in Windsor, Canada.” The bonds and contract were pasted in a book, and the letter of March 20th was pasted under them in the same book.

Some time the last of June or early in July the plaintiff made investigation into the financial standing of the contractors. At this time he had furnished about $600 worth of materials and work, and had been paid about $300. Afterwards payments were made to him amounting to-about $1,100. He had an interview with the architect at Port Huron, who suggested to him he had better go to Harbor Beach and look the papers over, and satisfy himself as to the responsibility of the contractors. He went to Harbor Beach, and the book in which the contract and bonds and Mr. Baxter’s letter were pasted was given to him by Mr. Wagner, and he made such examination of them as he desired. He admitted on the trial that he saw the bonds and the contract, but claimed he did not look over any other papers on that page. At the time this suit was brought, the school district had paid the contractors all but about $30 of the contract price. The plaintiff had not attempted to collect the balance due him from the contractors or from the makers of the bond.

The first question to be decided is, Are the defendants liable because of a failure to comply with the statute in taking the bonds which were taken by them ? The cases cited by plaintiff of Owen v. Hill, 67 Mich. 43 (34 N. W. 649); Plummer v. Kennedy, 72 Mich. 295 (40 N. W. 433); Wells v. Board of Education, 78 Mich. 260 (44 N. W. 267); and Weinberg v. Regents of University, 97 Mich. 246 (56 N. W. 605), — were all cases where-no bond in fact was given. In the case before us the board of trustees undertook to comply with the provisions of the statute, and, before accepting the bonds, sought counsel as to their duty. It was not until after the bonds had been accepted, and the contract signed, that the board learned from one of the sureties that his property was not in this State, but in Windsor, he at the same time saying he had property of the requisite value in Windsor. The record is clear, we think, that the board acted in good faith, meaning to comply with the provisions of the law. In Owen v. Hill, 67 Mich. 43 (34 N. W. 649), Justice Champlin, who wrote the opinion, in which it was held the trustees would be liable for not taking the bond required by the statute, used the following language:

“ The mere act of requiring a bond is a ministerial act involving no discretion, and consequently no judicial functions. In addition to requiring the bond, the law requires that they shall first fix the amount in which the bond shall be given, and, second, they shall pass upon the sufficiency of the sureties. These two requirements doubtless involve in a limited measure the exercise of judicial functions. I do not think these functions are so connected with the ministerial duty of requiring the bond as to be inseparable, nor do I think that the performance of one involves the exercise of the other. In neglecting to require a bond at all, the board neglected the performance of a plain ministerial duty imposed by statute, and it is well settled that, when the law casts any duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures. * *
“But whether the whole transaction of requiring the bond and its approval be looked upon as involving the exercise of judicial functions, I am still of opinion that defendants would be liable for an entire neglect to attempt the performance of the duty required by statute. It is a general principle that courts or officers exercising judicial functions shall not be held liable for any error of judgment. 'There is a distinction, however, between cases where parties invested with discretionary authority exercise it to the injury of an individual, and where they neglect to exercise it at all.”

This indicates very clearly that, while the board might be liable for neglect to act at all, if they had in good faith attempted to comply with the statute there would be no liability. There is no safety in any other rule. It is for the board to determine the amount for which the bond shall be given, and the sufficiency of the sureties. In deciding these essentials it is acting at least quasi judicially, and for an error of judgment its members are not to be mulcted in damages. In Reed v. Conway, 20 Mo. 22, it is said:

“I do not think it necessary to cite further authorities to support the general proposition I laid down, viz., that where a ministerial officer does an act as a judge, or does a judicial act, which is within his power and jurisdiction, then, although an injury njay arise to another, yet such officer is not liable to a civil action by the injured party, unless it be proved that the act was willful and malicious. The cases from Denio go further, and exempt such officer thus acting from all liability to civil action, however malicious or corrupt his motives. Without agreeing to or dissenting from the views of the court in the two cases, last cited, the authority of the highest courts in England and our country will hear out the proposition that the ministerial officer, acting judicially within his jurisdiction, is not liable, unless his acts be willful and malicious.”

See the many cases cited therein; also Edwards v. Ferguson, 73 Mo. 686; Chamberlain v. Clayton, 56 Iowa, 331 (9 N. W. 237, 41 Am. Rep. 101), and cases, there cited.

Having reached this conclusion, it is not necessary to say whether defendants are relieved from liability because the' plaintiff, before furnishing the material and doing the factory work for which he sues, knew what bond had been taken, and who the sureties were, and that they were nonresidents of the State. Nor is it necessary for us to decide whether plaintiff was bound to make an effort to collect his claim against the principal contractors before bringing this suit.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. JENNINGS.
    1. Criminal Law — Adulteration oe Food — Lemon Extract.
    In a prosecution under the pure food law (3 Comp. Laws, § 6013) for selling a compound as lemon extract which was adulterated, the pharmacopoeia formula may be taken as the standard for lemon extract.
    2. Same — Improvement oe Food Products.
    The statute does not prevent improving a common article of food where the law and spirit of the act defining adulteration are not infringed.

      3. Same — Construction of Statute.
    The provision of 2 Comp. Laws, § 5012, that an article is adulterated, “second, if any inferior or cheaper substance or substances have been substituted wholly or in part for it,” should be construed in connection with the following provision, “if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it,” and therefore means the substitution of a cheaper or inferior substance for an essential ingredient.
    4. Same — Instructions—Lemon Extract.
    An instruction that if any ingredient of lemon extract, as defined by the pharmacopoeia, was wanting in the extract sold by respondent, there should be a conviction, was erroneous.
    5. Same — Coloring Matter.
    The provision of the statute prohibiting coloring an article, whereby damage or inferiority is concealed, has no application where the coloring matter employed in the manufacture of a lemon extract was not injurious to public health, and the difference from the standard article in other respects consisted only in the elimination of nonessential ingredients.
    6. Instructions — Expert Testimony.
    It is error for a judge, in his charge to the jury, to refer to expert testimony as “boughten testimony.”
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted February 20, 1903.
    (Docket No. 207.)
    Decided April 7, 1903.
    Charles W. Jennings was convicted of violating the pure food law.
    Reversed.

      Knappen, Kleinhans & Knappen and L. N. Keating, for appellant.

      Charles A. Blair, Attorney General, and George S. Lovelace, Prosecuting Attorney (Cross, Lovelace & Boss, of counsel), for the people.
   Montgomery, J.

This is a prosecution under the pure food law, so called. The respondent was convicted under an information charging him with selling a compound as a lemon extract which was adulterated, within the meaning of Act No. 193, Pub. Acts 1895, as amended, and was a compound in imitation of extract of lemon. The respondent was convicted, and brings the case up on exceptions before sentence.

The evidence introduced on the trial by the respondent tended to show that lemon oil contains from 3 to 10 per cent, of citral, so called, and upwards of 90 per cent, of so called terpenes; that these terpenes represent the oil properties ; that they are in reality the oil itself, freed from the citral; that citral is the principal flavoring and odor-bearing property of lemon oil; that the tendency of the terpenes in the oil of lemon is to deteriorate or become rancid by long standing, and that because of this the extract or spirits of lemon in which terpenes appear, in the usual quantities becomes turpentiney, both in smell and taste, and that for this reason it is undesirable to have terpenes present; that the terpenes have a biting taste, easily developing a turpentine taste, not the true flavor of the lemon fruit. There was also testimony tending to show that this fact created a demand for terpeneless oils, and that terpeneless lemon oils had been manufactured and sold commercially for a considerable time.

On the part of the prosecution, the testimony of the chemist of the pure food department was to the effect that, taking as a standard of extract of lemon the spirits of lemon as defined by the United States Pharmacopoeia formula, the extract produced by the respondent showed no lemon oil present. It further appears that spirits of lemon made according to the pharmacopoeia formula would contain from 35-100 to 35-100 of 1 per cent, of citral. It also appeared that 30 per cent, of alcohol appeared in the product made by respondent, and that, according to the pharmacopoeia formula, 80 per cent, was used, and that it cost less to make the extract using but 30 per cent, of alcohol than if 80 per cent, was used. It was also shown that a trace of coal-tar dye was found in the extract made by respondent, but it was conceded that there was nothing whatever injurious in the extract as prepared by Mr. Jennings. The extract sold by respondent was made by what is known as the “shaking-out process;” the purpose being to make an extract that contains no oil and as little alcohol as possible, — a product that contains simply the flavoring properties of the lemon oil, without the terpenes. This system has been employed by Mr. Jennings and by other manufacturers for the past three years, and it is claimed that all the elements and properties of lemon oil remained, except the terpenes; and the testimony tended to show that the complete flavoring qualities are extracted by this process.

The circuit judge charged the jury as follows:

“ In 1895 the legislature of this State thought it wise to pass a law relative to the adulteration of food and food products. Perhaps there may have 'been some amendments since that time, but that was the foundation of the law. That law covers lemon extract, as it covers all other products that are sold on the market. It seems at the time that the law was passed and since that time there hasn’t been— There isn’t incorporated within that law any specific formula for the manufacture of lemon extract. Now, we can hardly say, gentlemen of the jury, that, at the time of the passage of that law, the legislature didn’t have some recognized and defined standard by which these essences or extracts should be governed or controlled. I think it would be hardly fair to the legislature to claim that there wasn’t a standard they had in their mind at that time, and, for the purposes of this case, I will instruct you, gentlemen, that at that time, and at this time, this standard that appears here in the United States Pharmacopoeia is the standard recognized by the legislators of this State, and the one to which — the one that is in force, so far as it applies to the pure food law of this State, with reference to that particular product. And if this lemon extract here is manufactured in conflict with that formula, as I shall hereafter call your attention to it, and you should so find from the evidence, why, it would be your duty to convict the defendant here.
“ By that formula it appears that it is necessary to have 5 per cent, of lemon oil in the lemon extract, and that lemon oil should be cut by a sufficient quantity of alcohol to perform that act. Of course, you know that that means, in common parlance, it should dissolve the oil. - In addition to that, as the evidence tends to show in this case, after those things are put together, the fluid, whatever it might be, would be nearly the color of water. As coloring, there may be or should be 5 per cent, of lemon rind; and those ingredients, when added together, would be lemon extract; and that, gentlemen, will be the standard as applied to the pure food law of. this State.
“Now, gentlemen, I don’t mean by that statement that lemon extract cannot be manufactured by any other process except by that to which I have called your attention ; I don’t mean that. It is the claim of the defendant here that he has discovered a process by which he can manufacture lemon extract containing all of the qualities that lemon extract manufactured according to that formula would possess, and not have entirely all of the ingredients in the first instance that are provided in the formula. And as I view this case, gentlemen, that is one of the important propositions in connection with this case, — that and the question of coloring, in the judgment of the court, is the case, — and that all of the testimony in the case here revolves itself about those two propositions.
“ It is the claim of the defendant, as I say, he has discovered a process by which he can produce in this lemon extract all of the qualities that would be produced by adding alcohol and lemon oil together, and that, manufacturing it by that means, he produces it chemically by taking a larger quantity of lemon oil and extracting certain parts' of it. Now, gentlemen, if you find and are satisfied by the evidence in this case that, after this lemon extract was manufactured as defendant here claims he did manufacture it, it possesses all the qualities in strength and otherwise that it would possess if manufactured according to this formula, he is not guilty under this law; that is, he is not guilty of manufacturing an impure article, unless there are certain other articles that enter into the case, to which I call your attention. As I say, in the first instance, it is claimed that, according to the formula, it should be alcohol and 5 per cent, of lemon oil. Now, if he, by some other process, can manufacture from the lemon oil and alcohol a product that would contain all of the elements that these two elements would contain if so mixed, he would not be guilty so far, and that would be lemon extract, except the color of it.
“ It is conceded here by all parties in interest, I think, that the only object of the lemon peel is to produce coloring. But there is another element to which the prosecuting attorney has called our attention. The evidence tends to show, gentlemen, that, if this product is produced as claimed here on the part of the defendant, after production by his process, the product would be nearly water white. As I say, if it contained all of the elements of lemon extract, I don’t think he would be guilty, under this law; and if you are so satisfied, of course, at that point it would be your duty to find a verdict of not guilty, unless there is some other matter in which he has violated this law.
“There is another provision of this pure food law that provides that ingredients shall not be colored. In this case it appears that after this fluid substance is produced, which he claims is just the same as produced under this formula, he desires to change it to a lemon color. In other words, he puts in an ingredient which he claims would produce the same effect as this lemon rind. What is the object, gentlemen, or what was the object, of Mr. Jennings’ adding this color ? If the object was by any means to make it appear better or of greater value than it really is, if that was the object in adding that product, it is your duty, without any question, to find this defendant guilty, because he hadn’t any right to add that kind of a product or any other kind of a product to this fluid which he had produced, and sell it for lemon extract, because that is a direct violation of one of the provisions of this pure food law.”

We think this charge presents fairly three questions for consideration: First, whether the pharmacopoeia formula is to be considered as defining lemon extract; second, if so, whether an omission of ingredients not essential to its purposes as a food product is a violation of the statute; third, whether the instruction relative to the addition of coloring matter should be sustained.

The statute defining what shall be deemed adulteration, so far as it relates to this case, declares that an article shall be deemed adulterated:

First, if any substance or substances have been mixed with' it, so as to lower or depreciate or injuriously affect its quality, strength, or purity; second, if any inferior or cheaper substance or substances have been substituted wholly or in part for it; third, if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; fourth, if it is an imitation of, or is sold under the name of, another article; * * * sixth, if it is colored, coated, polished, or powdered whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; seventh, if it contains any added substance or ingredient which is poisonous or injurious to health.” 2 Comp. Laws, § 5012.

We are agreed with the circuit judge that in referring to articles of food, and to protect the users thereof, the legislature must have had in view some standard; and, as lemon essence or lemon extract had theretofore acquired a well-defined meaning, we incline to the view that it is proper to resort to the pharmacopoeia formula for the purpose of determining what lemon extract consists of. Does it follow from this that the legislature intended to prohibit improvement in the manufacture of lemon extract ? If a means should be discovered by which a larger percentage of the flavoring quality of the lemon might be extracted, would it be an infraction of this law that the manufacturer should use such larger proportion of the essential ingredient of the lemon extract? We think not. We think it is open to manufacturers to improve a common article of food, so long as no infringement of the law or spirit of the act defining what shall be deemed adulteration takes place. According to the proofs offered by the respondent, it is very clear in the present case that no substance or substances have been mixed with this extract so as to lower or depreciate or injuriously affect its quality, strength, or purity.

As to the second condition of what amounts to adulteration, the case is not so clear. This provides that, if any inferior or cheaper substance or substances have been substituted wholly or in part for it, it shall amount to adulteration. We think, however, this provision should be read in connection with the succeeding one, to wit, “if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it.” So construed, the provision prohibiting the substitution of any inferior or cheaper substance, wholly or in part, for it, means the substitution for an essential ingredient of such cheaper or inferior substance. Now, if it be a fact, as the testimony on the part of the respondent' tends to show, that it is a positive advantage to exclude the terpenes wholly from the extract, and to lessen the quantity of alcohol used, then the essential ingredients of lemon extract have not had substituted for them anything inferior or cheaper. We are aware that this view of the law may make it more difficult to establish the individual case, but, as the statute is a penal statute, it should receive a strict construction.

It follows from the views above expressed that the instruction of the learned circuit judge was erroneous, inasmuch, as the jury were told, in effect, that if any ingredient of lemon essence, as defined by the pharmacopoeia, was wanting in this extract sold by the respondent, there should be a conviction. We think the instruction should have been that if the lemon extract sold by respondent contained all the ingredients, and in quantities such as prescribed by the pharmacopoeia, which are adapted to use as food, and that nothing was eliminated except such ingredients as could be dispensed with without injury to the product as a food product, there was no violation of the statute.

The only other provision of the statute involved is the sixth, which, in effect, prohibits coloring the article produced, whereby damage or inferiority is concealed. The instruction upon this branch of the law was also erroneous, if we are correct in our view of the main question. The elimination of nonessential ingredients from the extract certainly does not show damage or inferiority, and, as the conceded facts are that the coloring matter employed was not injurious to health in any way, this provision has no application.

The other questions discussed do not require special mention. It may be noted, in passing, that the circuit judge, in referring to the testimony of expert witnesses, spoke of it as “boughten testimony.” We think this expression was unfortunate. While it is proper for the jury to take into account the fact that expert witnesses are employed at'an extra compensation paid them, the implication that the extra compensation necessarily amounts to a purchase of their testimony is hardly warranted. While the jury may consider this fact as bearing on their credibility, it is not proper that the court should intimate an opinion of that character.

The conviction should be reversed, and a new trial ordered. ■

The other Justices concurred.


author: Hooker, J. Moore, J. Hooker, C. J.

text:
    PUTZE v. SAGINAW VALLEY MUTUAL FIRE-INSURANCE CO.

    1. Fire Insurance — Premature Suit — Statutory Limitation — Pleading — General Issue.

      A defense to an. action on a fire-insurance policy, that, by a condition in. the policy, a claim for loss is not due until 60 days after notice, and that, by statute, suit cannot be brought until 60 days after the claim is due, is not admissible under the general issue. Cir. Ct. Rule 7.
    2. Same — Notice ob* Defense — Sufficiency.
    A notice which states that suit was prematurely commenced, that plaintiff had not complied with all the conditions of the policy, and had not waited as long as the law required after the claim became due before commencing suit, is sufficiently specific to admit of the defense that, under such policy and statute, suit could not be brought until 120 days after notice of the loss.

      3. Same — Claim for Loss — When Suit May be Brought.
    The act under which a mutual fire-insurance company was incorporated provided that suit might be brought if payment of a claim was withheld more than 60 days after it became due. A policy provided that a claim for loss should not become payable until 60 days after notice. Held, that suit could be brought at the expiration of 60 days after notice of loss. Hooker, C. J., and Grant, J., dissenting.
    Error to St. Clair; Atkinson, J.
    Submitted December 7, 1900.
    (Docket No. 170.)
    (Docket No. 133.)
    Opinion filed July 2, 1901.
    Submitted on rehearing January 31, 1902.
    Reargued January 14, 1903.
    Former opinion reversed April 7, 1903.

      Assumpsit by Gustave Putze against the Saginaw Valley Mutual Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Humphrey & Grant and G. L. Collins, for appellant.

      Avery Bros & Walsh, for appellee.

       The original opinion in this case was withheld from publication pending the rehearing.

       On rehearing; original decision contra.

   Hooker, J.

The plaintiff, being owner of a building used for the purposes of a hotel and saloon by one Dwyer and his partner, tenants of the plaintiff, procured a policy of insurance against fire in the defendant company, dated January 12, 1897. In the following March, Dwyer and partner left the premises, and by consent of the plaintiff one Armstrong entered as tenant; and he ran the hotel and saloon, without a license authorizing him to sell liquors, until the premises were burned, on May 8, 1897. On May 22, 1897, an agreement was made for an appraisal of the property. This was made, and it is agreed that, if the plaintiff was entitled to recover in his action, the amount of recovery should be $1,140. Proofs of loss were furnished to defendant on July 11, 1897, and upon July 15th the defendant’s secretary wrote to the plaintiff as follows:

“Saginaw, E. S., Mich., 7 — 15—’97.
“Gustave Putze, Esq.,
“Port Huron, Mich.
“Dear Sir: I have papers purporting to be proofs of the Dutch Earm fire loss. As they do not contain a schedule of the dimensions and materials entering into the buildings and additions thereto, in detail, to make them complete, this will have to be done.
“In view, however, of the fact Armstrong, your tenant, was arrested and convicted of carrying on a disorderly and illegal business, upon your complaint, it seems to me you voided your policy of insurance. Of this, however, I am not fully advised at this time. By reference to lines Nos. 14 and 15, 32 and 33, and 74, of your policy, you will see there are strong conditions in the contract, which you cannot plead ignorance of to evade responsibility in the matter. Respectfully yours,
“P. R. Proctor,
“Secretary.”

On September 8th plaintiff’s counsel wrote and sent to defendant the following letter, inclosing the papers mentioned:

“ Port Huron, Mich., Sept. 8, 1897.
“Saginaw Valley Mutual Eire-Ins. Association,
“Eddy Bldg., Saginaw, E. S., Mich.
Gentlemen: Re your policy No. 010,775.
“In this matter we inclose you herewith the original proofs of loss which you had returned to Mr. Putze, together with certified plans of the building burned. You will also find inclosed affidavits of the appraisers, A. J. Smith and J. Pennabaker, together with itemized bill for materials needed to rebuild the Dutch Earm hotel. Kindly let us know as soon as possible whether or not you will pay this loss. Truly yours,
“Avery Bros. & WaEsh.”

In answer the defendant’s secretary wrote a letter dated September 9, 1897, in which it was claimed that the company was misled and deceived as to the value of the property when the policy was obtained, and that some months before the fire its occupancy was changed, and an unlicensed saloon was afterwards conducted, increasing the hazard. A return of premium was offered to be made upon demand. It was said that, under the policy, the defendant had 60 days after notice, ascertainment, estimate, and satisfactory proof of loss was received, in which to consider the question of payment. The letter invited correspondence with a view to settlement.

On November 24, 1897, this action was commenced by summons. Declaration being filed, the defendant filed a plea of the general issue, accompanied by a notice containing the following allegations:

“1. That the policy of insurance declared upon in this case is void and of no effect, in that it was obtained by plaintiff through fraud and misrepresentation:
“ (a) Because the plaintiff, for the purpose of inducing defendant to issue said policy, fraudulently overestimated and stated to defendant the value of the property insured, and knowingly and willfully stated to defendant that the property was of much greater value than it really was.
“ (6) Because the plaintiff, for the purpose of inducing said defendant to issue said policy, falsely and fraudulently represented, and stated to defendant that the property insured was used for a hotel and regularly licensed saloon, when, as á matter of fact, it was not, at the time of issuing said policy, regularly licensed, or licensed at all, as a saloon, but, on the contrary, was used for the purpose of conducting a saloon therein without license or authority.
“2. That said policy is void and of no force and effect because, at the time that the property described in said policy was burned, the said property was being used for the purpose of illegally and wrongfully conducting a saloon therein without license or authority.
“ 3. That the plaintiff cannot recover in this action on said policy because there was a change in the use, occupation, and exposure of said property at the time of said fire, different from the use, occupation, and exposure of said property at the time said policy was issufed, in that at the time said fire occurred said property was being used for the purpose of conducting a saloon business therein without license or authority.
“4. That the plaintiff cannot recover in this action because the hazard was increased at the time of the fire by reason of the said property being used for conducting a saloon therein without license or authority, all of which was within the knowledge and control of the plaintiff.
“5. That the plaintiff cannot recover in this case because this suit was prematurely commenced, and at the time of the commencement of this suit the plaintiff had not complied with all the conditions of the law governing this policy, and had not waited as long as the law required after the claim became due before commencing this action, according to the provisions of law governing this case.
“6. That at the time of the commencement of this action the plaintiff was not entitled to bring suit against this defendant upon the said policy under the terms and conditions on which the said policy was issued. ”

The act under which the defendant was organized contains the following provision:

‘ ‘ Suit at law may be prosecuted and maintained by any member against such corporations for claims which may have accrued, if payments are withheld more than sixty days after such claims shall have become due.” 2 Comp. Laws, § 7326.

The policy contained the following provisions:

“The sum for which this company is liable, pursuant to this policy, shall be payable sixty days after due notice,” etc.
“The loss shall not become payable until sixty days after the notice,” etc.
“If this policy be made by a mutual or other company having special regulations lawfully applicable to its organization, membership, policies, or contracts of insurance, such regulations shall apply to and form a part of this policy, as the same may be written or printed upon, attached or appended hereto.”

Upon the trial it was contended by the defendant that, by the terms of the policy, the plaintiff’s claim was not due until the expiration of 60 days from September 9th, at which time (i. e., September 9th) the proofs of loss were returned to its officers, and that, under the statute cited, action could not lawfully be commenced for 60 days more {i. e., 120 days after September 9th). The circuit judge sustained this construction, but held that the defense was not admissible, under Cir. Ct. Rule 7, subdivision “c” of -which provides that:

“ Whenever it shall be claimed in defense that any-written instrument set forth in the plaintiff’s declaration is void or voidable, or cannot be recovered upon, by reason of any statute, or by reason of nondelivery, failure of consideration, fraud, payment, discharge, or release, the facts upon which such defense is based shall be plainly set forth in a notice added to the defendant’s plea.”

See, also, 3 Comp. Laws, § 10074.

He also refused to permit an amendment, inasmuch as another action might be barred under the following clause in the policy:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”

Counsel for the defendant maintain that the defense was admissible under the general issue, and that in any event the notice was good, because it apprised the plaintiff of the nature of the defense, which is all that the-law requires of a notice.

We’are of the opinion that the learned circuit judge placed the proper construction upon the statute, and that the action would not lie until the expiration of 120 days from the time that proofs of loss were filed, as the claim was not due, according to the terms of the policy, until 60 days expired after proofs of loss were furnished.

We also think a notice necessary, and that this defense could not be made under the general issue; but we are of the opinion that this notice was sufficient, when tested by the rule that a notice is sufficiently specific when it apprises the plaintiff of the defense relied upon. Briesenmeister v. Knights of Pythias, 81 Mich. 532 (45 N. W. 977). This notice stated that the suit was prematurely commenced ; that he (plaintiff) had not complied with all of the conditions of the policy, and had not waited as long as the law required .after the claim became due before commencing this action, according to the law governing the case. This w as a statement of facts, and indicated an intention to rely upon the law and the policy in relation to the time when suit might be commenced.

It is contended -by counsel for the plaintiff that the case of First Baptist Church v. Insurance Co., 119 Mich. 203 (77 N. W. 702), sustains their contention as to the construction to be given the statute, viz., that it refers to the same 60 days mentioned in the policy, and it is said that such case is nearly on all fours with the present case. The policy explicitly fixes the period of 60 days after proof and appraisal as the time within which the loss shall not become due and payable, and the statute authorizes action only when payment has been withheld for more than 60 days after the loss becomes due. The case cited has not held to the contrary. In that case there was no notice of this defense, and, as we have already said, such notice was necessary. There was also a claim of waiver of that condition. The opinion does not state which ground the case turned upon. It is clear that it might have turned upon the want of notice of the defense.

It already appears that proofs of loss were furnished and received by defendant on July 11th. If it can be said that these were “satisfactory proof of loss,” the 60 days began to run then. These proofs of loss seem to have complied with the requirements of the policy. An appraisal had previously been made by persons selected by the parties, and this had reached the defendant about May 22d. The defendant saw fit to claim that • these proofs were not complete, because they did not contain the dimensions and materials entering into the buildings and additions in detail, and asked that - these be supplied. ■ While these were not necessary in the first instance, the deféndant had a right to require them, under the terms of the policy. There was no undue delay in making such demand; the secretary having asked for this four days after he received the first proofs, i. e.,- on July 15th. We consider the information a necessary part of the proofs of loss, when demanded seasonably, and must hold, therefore, as did the learned circuit judge, that the proofs of loss were not complete until September 9th, and it follows that the action was prematurely commenced. Northwestern Mut. Life-Ins. Co. v. Greiner, 115 Mich. 639 (74 N. W. 187).

• We have no alternative but to reverse the judgment and order a new trial. It is so ordered.

•The other Justices concurred.

ON REHEARING.

Moore, J.

This case was heard, and an opinion filed, which is reported supra. Afterwards a rehearing was ordered. A reference to the opinion which was filed will make a long statement of facts unnecessary here. The question in doubt is what construction shall be given to the word “due,” as used in the statute. The claim of plaintiff is stated as follows:

“The policy became ‘due' as soon as completed proofs of loss were filed, but not ‘payable,' under the terms of the policy, until 60 days thereafter. In the statute the word ‘due' is used, and the word ‘payable' is not used. We contend that the word ‘ due' here is used as meaning * owing' and ‘ remaining unpaid;' that as soon as a sum is fixed it is ‘ due,' although it may not be ‘ payable' until later. There is a distinction between the word ‘ due' and the word ‘ payable.' ‘ Due' means ‘ owing' and ‘ remaining unpaid.' Fowler v. Hoffman, 31 Mich. 219; Smalley v. Ashland Brown-Stone Co., 114 Mich. 104 (72 N. W. 29).”

On the part of the defendant it is insisted that this position is erroneous, and that the claim was not due until it was payable.

The case is not free from difficulty. Not many cases have been adjudged which aid the court in arriving at a conclusion. After the opinion was filed in the case, our attention was called for the first time to two cases to which reference will be made later.

The defendant company is organized under Act No. 78, Pub. Acts 1883. The provision of the statute to be construed is found, in section 10 of said act (3 Comp. Laws, § 7336), and reads:

“Suit at law may be prosecuted and maintained by any member against such corporations for claims which may have accrued, if payments are withheld more than sixty days after such claims shall have become due.”

As early as 1849 the State of New York passed a law which had a provision essentially like the one contained in our statute. Laws N. Y. 1849, p. 448, chap. 308. This provision was construed by the supreme court of New York in 1853 in the case of Utica Ins. Co. v. American Mut. Ins. Co., 16 Barb. 171. In that case the statute under which the defendant company was organized provided, among other things, that “suits at law cannot be maintained by any stockholder or member of the corporation for losses until payment shall have been withheld more than two months after such loss shall have become due.” Section 16, Laws 1849, p. 448, chap. 308. It was claimed, as is claimed here, that the loss did not become due until 60 days after its amount had been determined, and that suit could not be brought until two months after the expiration of the 60 days. The court said:

“ That section provides that the corporation may sue its stockholders, and that ‘suits at law maybe prosecuted by any stockholder, against such corporation, for losses which may have accrued (if payment is withheld more than two months) in all risks after such losses shall have become due.’ The word ‘due’ has two meanings. The one indicates a debt ascertained and fixed, though payable in futuro; and the other, a debt where the money has become payable, so that a suit will lie on it presently. The first objection applies whenever a sum of money is due by a certain and express agreement, as by a bond for a determinate sum, a bill, a note, or a special bargain, or rent reserved on a lease; when the quantity is fixed and specified, and does not depend on any subsequent valuation to settle it. 2 Jacob, Law Dict. 198. This is in accordance with the old maxim, ‘Debitum in preesenti, solvendum in futuro.’’ The amount due in this case wag settled by a resolution of the company on the 13th day of January, 1852, and the money declared to be payable in 60 days thereafter. This suit was not commenced till after the expiration of the said 60 days. This was right. It was not the intention of the act to give a further credit of 60 days after the expiration of the two" months from the time when the proofs were received by the company, and the amount had been settled and allowed and fixed absolutely by the defendants. By that settlement, stated in the resolution of the 13th of January, 1852, the money became due by the true interpretation of the statute, payable in 60 days thereafter. Such, we think, is the true construction of this section.”

The same question was discussed in Allen v. Insurance Co., 19 Barb. 442, where the court used the following language :

‘ ‘ It was insisted upon the trial that the action had been commenced prematurely. The preliminary proofs were delivered on the 24th of July. The suit was brought on the 10th of November in the same year. By the terms of the policy, the loss was to be paid within 60 days after notice and proof thereof made by the assured in conformity to the conditions annexed to the policy. The loss became due immediately upon the happening of the fire, and would have been payable at once, but for this provision in the policy. By the 16th section of the general insurance act, under which the defendants were incorporated (Sess. Laws 1849, p. 448, chap. 308), suits at law may be prosecuted for losses if payment is withheld more than two months after such losses shall have become due. The defendants insist that the effect of this provision of the statute is to extend the credit to which they are entitled for the period of two months beyond that for which they had stipulated by the terms of their contract. But I do not so construe the statute. The loss became due when the property was destroyed, or, at any rate, when the requisite proofs were furnished. Without the statute, and had there been no stipulation in the contract to prevent it, a suit might have been commenced at once. But though due when the proofs were delivered, the statute had the effect to postpone the time of payment two months. It was then a debt, debitum in prcesenti, solvendum in futuro. The defendants, without reference to the provision of the statute, saw fit to stipulate in their contract for a similar credit. Had they agreed to pay in 10 ■ or 30 days after proof of loss, they might have been sued at the expiration of this period, notwithstanding the provision of the statute. The only effect of that provision is to fix the time within which the loss should be payable when the parties have omitted to do so by the terms of their contract.”

This construction of the statute of New York, given to it in two cases before our statute was adopted, should have great weight, and a majority of the court think it should obtain in this case. We are of the opinion it was not the intention of the legislature that the company should have 60 days after satisfactory proof of the loss had been received before the loss should be pajmble, and, in addition thereto, that 60 days must elapse after the. loss became payable by the terms of the policy before suit could be brought.

It is said by counsel that the case of Utica Ins. Co. v. American Mut. Ins. Co., supra, is practically overruled by the later case of Steen v. Insurance Co., 89 N. Y. 315 (43 Am. Rep. 297). We do not agree' with this conclusion. In that case the question involved was, not that the suit was brought prematurely, but that it was brought too late. It was claimed that the suit must be' brought within a year from the time of the fire, and-the court held that the period of limitation did not begin to run until the loss was payable, and made use of the following language:

“The contract limits the time for bringing an action under or by virtue of the policy to a ‘ term of 13 months next after the loss or damage shall occur,’ and declares that, ‘ in case any such suit or action shall be commenced * * * after the expiration of 13 months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed conclusive evidence against the validity of the claim thereby so attempted to be enforced, anyatatute of limitation to the contrary notwithstanding.’ The validity of such a stipulation is well settled (Wilkinson v. Insurance Co., 72 N. Y. 499 [28 Am. Rep. 166]; 2 May, Ins. § 478), and in this case the'question is one of construction. What was the intention or understanding of the parties as to the time when the limitation should begin to run ? The facts are undisputed, and the defendant’s contention is that the words I have quoted are to be taken literally, and that they import a contract that no action shall be commenced after the expiration of 12 months from the happening of the fire by which the property insured was damaged or destroyed. On the other hand, the plaintiff has so far succeeded upon the ground that they relate to the time when a claim or cause of action accrues on which a suit may be maintained; that no claim accrues or arises in favor of the insured upon the mere happening of the loss, nor until 60 days after the proof required by the insurers, or provided for in the policy, should have been received by them at their office in New York, and the loss satisfactorily ascertained and proved.
“These events are made conditions, and are certainly precedent to the maintenance of an action, and we are of the opinion that they cannot be disregarded in getting at the true understanding of the parties of the meaning of the clause in question. Indeed, they seem to be the governing words of the contract. They are the words of the underwriters, intended for their protection, and qualify the general obligation to make good any loss, not exceeding the sum insured, or the interest of the assured in the property, by requiring preliminary proof, and a lapse even then of a fixed period before any cause of action can accrue. Except for these provisions, a suit would have lain upon the instant of the happening of the fire, or within a reasonable time thereafter.
“Now, if we look at the clause relied upon, we find the insurers prescribing a time after which no claim shall be brought, and a declaration that it shall not be sustainable unless commenced within ‘the term of 12 months,’ and a greater lapse of time is made ‘ conclusive evidence against the validity of the claim then attempted to be enforced. ’ It is plain that a ‘term ’ or period is indicated after which the insurers shall not be liable, and the implied meaning of the same words must be that within that period they are or will be liable to an action. The law, in case of breach of contract, limits the time of bringing an action to six years. The contract substitutes 12 months. If we take the appellant’s construction, the term of 12 months is at once narrowed to 10 months, for 60 days, at least, must elapse after ‘a loss by fire’ before any suit could be brought, and the term is subjected to such additional abatement as may be made necessary by alleged inadequacy of proof, or controversies between the insurers and the policy-holder before such loss is ‘satisfactorily ascertained.’ The delay incident upon such provisions is illustrated by a variety of cases heretofore considered by the courts, and, among others, Ames v. Insurance Co., 14 N. Y. 253; Mayor, etc., of New York v. Insurance Co., 39 N. Y. 45 (100 Am. Dec. 400); Hay v. Insurance Co., 77 N. Y. 235 (33 Am. Rep. 607). These cases, in substance, hold that the time of limitation prescribed by such a contract does not commence running until the right to bring an action exists. Whether the delay is caused by extraneous circumstances, made effective by the insurer, as in the above cases, or by the provision of the policy giving time to the insurer before, the lapse of which payment cannot be enforced, is immaterial. The delay in either case is caused by the insurer, and until, by the terms of the policy, a cause of action accrues, the period of limitation against its enforcement should not, in the absence of plain and unequivocal words requiring such a construction, be deemed to commence.
‘ ‘ Here, we think, the intention of the defendant was to give the insured a full period of 12 months, within any part of which he might commence his action; and having, by postponement of the time of payment, secured itself from suit, it did not intend to embrace that period within the term after the expiration of which it could not be sued. In other words, the parties cannot be presumed to have suspended the remedy and provided for the running of the period of limitation during the same time.”

It will be seen this language is not inconsistent with the two cases cited, and it also disposes of the contention that to give the statute the construction we have given it will have the effect of depriving some other plaintiff of his remedy because he has not commenced his suit soon enough, though it was commenced within the time prescribed by the statute.

It is said that, as the defendant had 30 days after proofs of loss were received in which to elect whether it would repair, rebuild, or replace the property, or pay the money value thereof, until that time expired the plaintiff had no right to demand money damages, and, as this is a suit for money damages, it could not be brought until 60 days had expired after the 30 days for election had elapsed. "We do not think there is force in this contention. Under the cases which we have cited, the loss becomes ascertained when satisfactory proof-of loss is filed. It may be discharged by either electing within 30 days to repair, replace, or rebuild the property, or by paying the money value within 60 days.

We think the judgment should be affirmed.

Carpenter and Montgomery, JJ., concurred with Moore, J.

Hooker, C. J.

(dissenting). Subdivision 1 of section 50 of the Compiled Laws of 1897 provides:

‘ ‘All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

The statute applicable to this case must be construed according to the provision of subdivision 1 of section 50, quoted. The language of that statute is:

“Suit at law may be prosecuted and maintained by any member against such corporations for claims which may have accrued, if payments are withheld more than sixty days after such claims shall have become due.” 2 Comp. Laws, § 7326.

It is said that, in one sense of the word “due,” a claim is due when it accrues; but this is not the ordinary or natural sense. We would understand that, where one performs service for another under an express or implied contract, a debt or obligation at once accrues; but no one would think of saying it was due, until, ’by the terms of the contract, he had a right to demand it and expect payment. The policy in question expressly provides that the loss shall not become payable until 60 days after the notice of loss, etc., are served. Grant that the claim accrued when the loss occurred; it did not become due or payable, by the terms of the contract, until 60 days thereafter.

The statute itself recognizes the distinction between an accrued claim and a claim due. It authorizes a suit for a claim accrued, but requires that it be deferred 60 days after the accrued claim becomes due, not 60 days after the accrued claim accrued. In the face of this plain recognition in the statute of the difference between an accrued claim and a due claim, we should not construe the statute as though it read that suit might be brought on an accrued claim (though not due) after the expiration of 60 days after such accrued claim accrued. Such construction is equivalent to saying that suit may be brought 60 days after the loss, and therefore within a shorter period than the express contract of the parties permits, for the policy provides that the loss shall not be payable until 60 days after notice of the loss, and filing satisfactory proof of loss.

This would not be a very important question in this case, were it not for the fact that another action is barred by the stipulations of the policy. Had the action been commenced more than a year after the loss became payable by the terms of the policy, it would then become a question whether this statute would not save the case; and there would then be as strong an equity in favor of construing this law in accordance with the plain and ordinary meaning of its language as there is in this case to give to the same language a forced and unnatural meaning. No one doubts that words have different meanings, and, where it is apparent «that it was so intended,' an unusual meaning may be applied; but, under subdivision 1 of section 50, that can never be done when the intention is not to be discerned in the language used; and it is always dangerous to make the natural meaning yield to the exigencies of a particular case. We can see that applying the natural meaning to this statute will deprive the plaintiff of his remedy, if the defendant shall choose to make that defense. On the other hand, a different construction may deprive another plaintiff of his remedy because he has not commenced his suit soon enough, although it was commenced within the time prescribed by the plain provisions of the law. Neither the one consideration nor the other should have a feather’s weight in determining how the rule laid down by the legislature at a time before any contract was made should be subsequently construed.

We have already held that where one assigned a policy to his wife, with the provision that, in case of her death before it came due, it should be payable to the heirs and assigns of the husband, and the wife died after the loss accrued through the death of the husband, but before it became payable according to its terms, the word “due’ should receive the ordinary construction, and the heirs of the husband, and not those of the wife, were held entitled to the benefit. Northwestern Mut. Life-Ins. Co. v. Greiner, 115 Mich. 641 (74 N. W. 187). In that case we applied the law as laid down in subdivision 1, § 50, supra, and we have done the same in the original opinion in this case. We have the power to give this one construction in that case, and another in this; but the presumption should be that the legislature used the words in their ordinary sense, and meant what it said. So far as consistent, rules of construction should be adhered to, and not lightly set aside. Our law is a complex system, at best; and there is danger of going to the extreme of sacrificing uniformity and stability in definitions and rules to the possibilities of distinctions in the interest of real or imaginary justice. The safe rule is to accord to legislatures the credit of understanding and doing what they intend, and ordinarily courts should content themselves with enforcing their mandates so far as possible, and leaving to them the responsibility of correcting their mistakes, if they make any, and of intervening miscarriages of justice.

The case of Utica Ins. Co. v. American Mut. Ins. Co., 16 Barb. 171, is at variance with the construction given to our statute in our former opinion. It is said that this case and another similar (see Allen v. Insurance Co., 19 Barb. 442) placed a construction upon this statute in New York before its adoption here, and that, under a well-understood rule, Michigan adopted the construction when it adopted the law. If this law were adopted from New York, of which I am not satisfied (and the language is not identical), it came to us without a construction by the court of last resort, and we owe this claim to the accident that unauthoritative decisions are reported in that State. These cases do not appear to have been reviewed, but they seem to be inconsistent with the case of Steen v. Insurance Co., 89 N. Y. 315 (42 Am. Rep. 297). There it was held that a period of limitation did not commence to run until the loss became due and payable, notwithstanding the fact that the parties had stipulated that a right of action should be limited to 12 months next after loss or damage should occur. But, whatever we may think of the cases in Barbour, the rule invoked is not inflexible. On the contrary, its binding force has been wholly denied. See End. Interp. Stat. § 371.

It is said that the defendant may be held to have waived its statutory right by the stipulation in its policy. Did the policy clearly show an intention to waive its right to 60 days after the maturity of a claim before action could be brought, we might find it necessary to consider the question of waiver. But I am of the opinion that no such intention is fairly deducible from the policy. We feel free to deal with this question upon principle and our statute, which has prescribed a rule of construction.

The judgment should be reversed, as held in our former opinion.

Grant, J., concurred with Hooker, C. J.