text:
      In re HEWITT’S ESTATE. ANDERSON v. KENDRICK.
    1. Appeal and Error — Drected Verdict — Review.
    In determining whether error was committed in the direction of a verdict the testimony of the adverse party must be considered in its most favorable aspect.
    2. Wills — Insane Delusions — Mental Competency — Evidence— Question for Jury.
    In a will contest, held, that there was sufficient proof of the lack of mental capacity and of insane delusions on the part of testatrix to warrant submission of such questions to the jury.
    3. Same — Undue Influence — Mental Competency — Evidence— Question for Jury.
    Evidence that testatrix, a woman 80 years of age, was in a confused state of mind while at a hospital, that the relations between her and a niece had been cordial previously to the time she was removed from the hospital by proponent, that she made a will while at the hospital giving the niece some of her property, that she was removed from the hospital by proponent and her husband and placed in charge of another physician, that another will was shortly afterwards made giving proponent nearly all of her property, that the niece and friends of testatrix were not allowed to see her, that the day before the will was made an attorney had refused to draw the will because of the condition of testatrix, and that while at the home of proponent testatrix said that the niece was a dissolute woman, was sufficient to make the question of undue influence in making the later will one for the jury.
    4. Same — Instructions—Mental Competency.
    An instruction, that all that is necessary to show that a person is mentally competent to make a will is “that the person making the will, at. the time of making the will, shall have such mental faculties and the control of same to the extent of recalling the nature and extent of her property, the number and names of her relatives, the natural objects of her bounty, and the power to retain such facts while considering her will,” was proper.

    5. Same.
    A requested instruction that no unfavorable inferences should be drawn from the failure of the husband of proponent to testify was properly refused, where the husband was charged as being a party in influencing the testatrix in making a new will in favor of his wife, and he was present at many of the conversations with deceased, knew all about her condition, got possession of her personal effects, and was present during the trial of the case.
    6. Appeal and Error — Instructions—Requests to Charge.
    It is not error to refuse instructions covered by the main charge.
    Error to Jackson; Parkinson, J.
    Submitted October 4, 1917.
    (Docket No. 10.)
    Decided December 27, 1917.
    Ella J, Anderson presented for probate the alleged last will and testament of Rose Hewitt, deceased. The will was contested by Sarah Kendrick and others on the ground of undue influence and fraud. The will was disallowed in the probate court and proponent appealed to the circuit court. Judgment for contestants. Proponent brings error.
    Affirmed.

      Price & Whiting, for appellant.

      Miner & Reece (W. S. Cobb, of counsel), for appellees.

      For authorities discussing the question as to what is testamentary capacity, see notes in 27 L. R. A. (N. S.) 5; L. R. A. 1915A, 444.

   Kuhn, C. J.

Rose Hewitt died in the city of Jackson on January 27, 1911. The record does not disclose her exact age, but it does appear that she was upwards of 80 years of age. She had lived alone for many years, and was a widow during the last 30 years of her life. Her estate consisted of a lot on which stood two frame houses, in one of which she had lived. She also had some money in the bank, amounting to about $3,270, and also some cash, $500 of which was found in her house and removed therefrom before her death.

The will in question was executed on the 20th day of January, 1911, at a time when Mrs. Hewitt was in a boarding house, to which she had been removed from the City Hospital by George Anderson and his wife, who are charged, with others, with procuring the will by undue influence and fraud at a time when testatrix was ’too weak, physically and mentally, to transact the business. The will, which was offered for probate, practically gives all of her property to Mrs. Anderson.

When the will was offered for probate, Sarah Kendrick and her three sisters, Mary Kendrick, Annie Neal, and Julia Morresen, nieces of the deceased, and their cousin, James Finnegan, interposed objections, and contested its probate on the ground of the mental incompetency of the deceased; also that the deceased had been unduly influenced to execute the will by Mr. and Mrs. Anderson and J. C. Kugler, a physician in attendance, and that the deceased was possessed of an insane delusion in regard to Sarah Kendrick. The will was denied probate by the judge of probate, and upon appeal these issues were tried before a jury in-the circuit court. At the close of the testimony the proponent moved that the court direct a verdict in her favor on the ground, substantially, that there was no evidence introduced to sustain any of the claims of the contestants; that is, that the testatrix was mentally incompetent, that there had been any undue influence exercised upon her with reference to the execution of this will, or that she was possessed of an insane delusion which affected the instrument in question. The motion was denied by the trial judge, and the three issues were submitted to the jury, who found, as the probate judge had previously found, that the paper offered was not the last will of Mrs. Hewitt.

The question argued at great length in the brief ■of counsel for the appellant and also at the oral argument is that there was not sufficient testimony to go to the jury upon the questions of incompetency, undue influence, and insane delusions, and that the court erred in not directing a verdict in favor of proponent, as requested. This question has made necessary a critical examination of the entire- record, and it is impossible within the purview of a written opinion to attempt to review all the testimony upon the questions here in issue. Such, however, will be referred to as we think necessary to understand the questions involved. In approaching this discussion it should be borne in mind, however, that the testimony must be considered in the light most favorable to the contestants’ claim.

■ Sarah Kendrick, the niece, did not reside in the city of Jackson, but it is her claim that she had been to see her aunt on various occasions, and came to Jackson on the 23d of December, 1910, at the solicitation of her aunt. At that time she stopped at her sister’s and the home of a friend named Maggie Fallon, w|iere she was taken sick with bronchitis, and after she recovered from this, on or about the 5th day of January, 1911, she went to the home of her aunt, and found that she also was sick, and saw a doctor, and after some discussion took her to the City Hospital at Jackson for treatment.

We think that the testimony is quite conclusive that Mrs. Hewitt was an eccentric person, and appeared especially to be so with reference to her property matters. When she was taken to the hospital, her niece wanted her to place her money and bank book in the hospital safe, but this she refused to do, and turned them over to her niece to keep. Neither would she allow the nurses to bathe her, and insisted upon the niece remaining in the hospital with her, but which it was found impracticable for the niece to do, and it' is her claim that she called every day until she was again taken ill.

While in the hospital, on January 9th, an attorney by the name of Curtis was called to prepare a will. He found that the deceased was possessed with an idea that her niece had taken $500 of her money, and that therefore she would only give her $100. in the will. It appears from the testimony of Mr. Curtis that she was in a confused state of mind concerning the amount of money she had and seemed unable to distinguish between half a hundred and half a thousand, and when he explained to her that there was $50 in gold in her purse which she had in her possession she stated to him that her niece therefore had not taken the money, and that she would give her $1,000. The will was drawn, and made such a provision, and also gave the house and lot to her nephew, Edward Finnegan, and $100 to a boy she claimed she had brought up, and the remainder of the property went to certain local charitable institutions.

It is the claim of the contestant Sarah Kendrick that she was taken ill on January 12th, and therefore could not visit the hospital, and that on the following day Mrs. Anderson visited the deceased, and, without consulting the hospital authorities or any of deceased’s relatives, called in her own physician, Dr. Kugler, and arranged to remove Mrs. Hewitt from the hospital to her husband’s boarding house, which, it is Mrs. Anderson’s claim, was done at the urgent request of the deceased, on the 16th of January. It is the claim of the contestants that from that time on the attitude of Mrs. Hewitt changed entirely, and that she thereafter refused to have anything to do with her niece, and it is their claim that the Andersons refused to permit her old friends to see her, that Miss Fallon, whom deceased had requested while at the hospital to call on her, was refused admission, and likewise Mrs. Seaman, an old friend who had written letters for her, testified that she was not allowed to see her when she called at the Anderson house.

On the 19th of January, Mr. Anderson called upon Mr. Noon, an attorney of the city of Jackson, to come to his home to draw some papers for Mrs. Hewitt. Mr. Noon testified that Anderson told him Mrs. Hewitt had several thousand dollars in the bank, and said:

“What kind of a paper can be drawn up or what can be done so the money can be turned over to us or so the old lady can obtain it?”

—that he was called into the sick room, and there found Mrs. Hewitt in such a physical condition that he refused to draw any papers. He described her condition and appearance to be:

“She looked very small. Her face was naturally small, and she looked very ill and sallow, and the face gave evidence of physical distress. She looked like a dying person. That’s about the only way I can say it, Mr. Reece. I guess I was about three or four feet from her, as close as that. I am sure she did not know of my presence there. She didn’t say a word to me. I was not introduced to her. Nobody said anything to her about my being there.”

—and that he told Mr. Anderson that her condition was such that he would not draft any papers, and that Mr. Anderson replied, “She is in very bad shape,” or, “She is very bad.” The next day Dr. Kugler again came to his office and requested him again to go to the Anderson house and draw some papers, and Mr. Noon thereupon refused to go. Dr. Kugler thereupon called another attorney, a Mr. Rossman, and when he arrived at the house, Mr. Anderson told him that he thought Mrs. Hewitt wanted to make a will—

“and I think she wants to give some of her property to us or to Mrs. Anderson — I don’t know whether she does or not. She hasn’t any relatives, only one niece, who keeps coming here, and she don’t want her to' come here.”

Mr. Rossman testified that Mrs. Hewitt, in referring' to her niece, said:

“I have got a niece that keeps coming here, and I don’t want her to come here. She is a bad woman. She runs all over — travels all over. She don’t care anything for me, except for my money. She wouldn’t do anything for me. It .is my money all she wants. She wouldn’t clothe my little finger”

—and further that she told him that the niece had stolen money from her. It appears that Mr. Rossman thereupon drew the will in question, and witnesses to the will were called by the Andersons. One of the witnesses, Mr. Woodworth, testified that he did. not think that the deceased was capable of taking into* account her property, considering the names and conditions of her relatives, and carrying this in her mind long enough to dictate a will. He further testified:

“Mr. Rossman put the pen in the old lady’s hand. She was very much emaciated. She could not write her name.
“Q. She could not?
“A. No.
“Q. Mr. Rossman then said, without being requested by her and without her saying a word, T will write it for you’?
“A. Yes, sir.
“Q. And took the pen out of her hand and proceeded to write her name?
“A. Yes.
“Q. Then, after he had got through with that, he said, T will make your mark and you put your finger on the end of the pen’?
“A. Yes,- sir.
“Q. He didn’t ask her to make her mark or attempt to?
“A. No.
“Q. When he took the pen out of her hand, she gave it up without any protest or remark whatever?
“A. Yes.
“Q. When he told her to put her finger on the pen, did she do that without saying a word?
“A. Yes, sir.
“Q. During the whole time you were in there, the only thing that old woman said in relation to the execution of that will was when he read it over and got through reading it and asked her if that was as she wanted it, she said ‘Yes’?
“A. Yes.
“Q. That was the only utterance that old woman made in relation to that will?
“A. Yes, sir.
“Q. You were not introduced to her when you went in there?
“A. No, sir.
“Q. So far as you know, she didn’t know who you were?
“A. I don’t think she did.
“Q. And no explanation made as to why you were there?
“A. No, sir; I think I have told all that was said there in relation to the will; nothing further said by Rossman than what has been stated.
“Q. He didn’t say, did he, ‘Mrs. Hewitt, you acknowledge this to be your last will and testament and ask these people to sign it as witnesses,’ or anything of that sort?
“A. No; he had her sanction the will as he read it.
“Q. He only read it once to her and she only sanctioned it after he got through reading it all?
“A. Spoke low or talked low; nodded her head several times, I think.”

It also appears that Mr. Rossman, at his own suggestion, was made a co-executor with Dr. Kugler of the will.

Mrs. Patterson, the nurse who attended Mrs. Hewitt at the Anderson house, testified that Mrs. Hewitt stated to her that her niece was a harlot and was trying to obtain possession of her house for the purpose of prostitution, and that she should never get it, and that the niece had taken her to the hospital against her will, and had stolen $500 from her, and therefore she did not wish to leave her anything.

Accepting the testimony of the contestants as true, it appears that before she went to the hospital, and while there, Mrs. Hewitt was interested in a very friendly way in her niece, the principal contestant in this case. That Mrs. Hewitt was in a confused and uncertain state of mind while at the hospital is evidenced by the fact that when Mr. Curtis, the lawyer, drew the will on the 9th of January, she conceived the notion that her niece had taken some of her money, and after Mr. Curtis had explained to her the difference between a half a hundred and a half a thousand, she apparently was satisfied, and made a substantial bequest to her niece in that will. We think it is plain that there was testimony to sustain the claim that the deceased had no such grasp of conditions as would enable her to dispose of her property intelligently. It is apparent that at the hospital it only required suggestions to her to cause her to dispose of her property, to give bequests of the residue of her estate to charitable institutions about which she knew little, and with which she apparently had nothing to do. After she was taken to the Anderson house, we think there is sufficient testimony to warrant the contention that her attitude towards her niece entirely changed, and that she became very much embittered towards her and refused to see her, and told one witness that her niece had scared her into signing the will which she made at the hospital, although it is quite clear that her niece was not present when this instrument was made. A reading of this record is satisfying that' there is evidence to sustain the contention that the Andersons and Dr. Kugler were active in getting a will drawn in favor of the Andersons. We are also of the opinion that the jury had a right to take into consideration her confused state of mind, even while at the hospital, to consider the relations existing between the niece and the deceased prior to the time the Andersons asserted control over her, the facts and circumstances connected with the making of another will a few days preceding the making of the will in question, the conduct of the Andersons in placing her under the charge of another physician and removing her from the hospital, their excluding the niece and the friends of deceased from her, the fact that the Andersons got possession of everything that she had, their activity in procuring the will in question, Mr. Noon’s refusal to aid them, and the statements made by deceased in relation to her niece. These were all facts and circumstances from which the jury might have drawn inferences of undue influence. See Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566); In re Loree’s Estate, 158 Mich. 372 (122 N. W. 623); In re Du Bois’ Estate, 164 Mich. 8 (128 N. W. 1092); In re Seymour’s Estate, 111 Mich. 203 (69 N. W. 494).

We also are of the opinion that there was sufficient proof of lack of mental capacity and of insane delusions to warrant the submission of these questions to the jury. Complaint is made that the learned trial judge erred in saying in his charge:

“That all that is necessary to show that a person is mentally competent to make a will is “that the person making the will, at the time of the making of the will, have such mental faculties, and control of the same to the extent of recalling the nature and extent of her property, the number and names of her relatives, the natural objects of her bounty, and the power to retain such facts while considering her will,” etc.

And it is insisteddhat this fixes too high a standard, that one’s relatives may or may not be the natural objects of one’s bounty, and that it would be difficult to find anyone who could recall the number and ñames of their relatives. We do not think that the charge is subject to the criticism made of it, because it will be noted that the court, in speaking of the relatives, limited them .to those, who were the natural objects of her bounty, which we are of the opinion is not an improper charge, and does not bring it within the cases of Spratt v. Spratt, 76 Mich. 384 (43 N. W. 627), and Moriarty v. Moriarty, 108 Mich. 249 (65 N. W. 964).

Error is also assigned because of the failure of the court to give a request to charge that the jury should draw no unfavorable inferences to the proponent from the fact that Mr. Anderson was not sworn as a witness in the case. The court did not instruct the jury that an inference unfavorable to Mrs. Anderson might be drawn from Mr. Anderson’s silence, and we do not think that the failure to give the request to charge was error, because Mr. Anderson was charged with having been a party to the influencing of the testatrix in making the will. He was present at many of the conversations had with the deceased, and knew all about her condition, and obtained possession of her personal effects. The record further discloses that he attended the trial and was present during its progress, and, in view of his relationship to the. proponent, we think that to have given the instruction requested would have been improper.

There are assignments of error based upon the rulings of the court with reference to the admission and exclusion of evidence. We have examined these assignments of error, and are satisfied that in none of these rulings was prejudicial error committed.

Complaint is also made of the charge of the court in the failure to give certain requests, but a careful reading of the charge is satisfying to us that the rights of the legatees were carefully guarded, and that the issues involved in the litigation were fairly presented to the jury by careful and proper instructions.

Being satisfied that no prejudicial error has been made to appear, we are of the opinion that the judgment should be, and is hereby, affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SORGE v. DICKIE.
    1. Vendor and Purchaser — Land Contracts — Cancellation of Instruments — Election of Remedies.
    Where there is no agreement for cancellation of a contract for the sale of realty, if the abstract fails to show a merchantable title and shows the pendency of a suit for specific performance of another land contract against the vendor, the purchaser has an. election to receive back the deposit and release the vendor, or take the inferior title.
    2. Contracts — Land Contracts — Performance—Time—Waiver.
    The time of performance of a land contract can be waived by the parties, and such waiver can be shown by their acts.
    3. Same — Specific Performance — Time—Waiver—Evidence.
    On a bill for specific performance of contract for the sale of realty, evidence held, to show waiver of the time of performance.

      i. Same — Land Contracts — Fraud—Misrepresentation—Equity.
    Where the simplicity and credulity of parties are taken advantage of by the shrewdness, overreaching, and misrepresentation of the other party, and they are thereby induced to do, unwittingly, something the effect of which they do not intend, foresee, or comprehend, and which, if permitted to culminate, would be shocking to equity and good conscience, a court of equity may interpose.
    5. Same.
    On a bill for specific performance of a contract for the sale of realty, evidence held, insufficient to show that the vendor was taken advantage of as the result of the shrewdness or misrepresentations of the purchaser so as to sell the land at less than its value.
    Cross-appeals from Wayne; Smith (Clement), J.,. presiding.
    Submitted October 18, 1917.
    (Docket No. 30.)
    Decided December 27, 1917.
    Bill by Paul A. Sorge against Louise Dickie for the-specific performance of a land contract. From the decree rendered, both parties appeal.
    Affirmed.

      U. Grunt Race and Walter F. Haass (Harry Allen,. of counsel), for plaintiff.

      William. Van Dyke (Otto Kirchner, of counsel), for defendant.
   Stone, J.

The object sought by the bill of complaint herein was the specific performance of a land contract, entered into by the defendant as vendor .and the plaintiff as purchaser on June 10, 1915. The defendant had been the owner of 20 acres of land in the township of Greenfield, Wayne county, since about 1890. She, with her husband, Dr. James F. Dickie, had formerly lived in Detroit, but for 22 years they had lived in Berlin, Germany, where Dr. Dickie had' conducted the American Presbyterian church. They' came to Detroit in May, 1915, to sell defendant’s 20-acres of land. This land was situated about one-quarter of a mile north of the city limits of Detroit, as they existed in 1915. It had a frontage of 20 rods. on the west side of Eighteenth street, or Linwood avenue, and an east and west depth of 160 rods. Before leaving Berlin, and about the last of April, defendant had received a cablegram from John W. Lathrop asking the price, of the land. Dr. Dickie sent a cablegram in reply, signed “Dickie,” stating the price to be $25,000. It was claimed by Dr. Dickie that defendant told him he might cable $35,000, but by mistake he cabled $25,000.

The defendant and her husband arrived in Detroit about May 31, 1915. According to their testimony, they made inquiries of different parties as to the value of the land; among others, they asked Richard P. Joy, president of the National Bank of Commerce of Detroit, and of the Joy Realty Company, and Mr. Joy said the property ought to sell for $2,000 to $2,500 per acre, but he would not give the higher figure. The defendant testified:

“Mr. Jordan offered me $40,000 after I had come here. I received other offers, I can’t remember from whom, but one was for $32,500. Right away after arriving in Detroit about the 31st of May, in order to find out what this land was worth, I asked a few friends who were not real estate men, but were owners of property in the vicinity. * * * I had last been here the year before, in 1914. I had visited acquaintances. I had visited Mr. Stonehouse. I don’t remember-what Mr. Stonehouse told me the property was worth. When I was here before, in 1914,1 learned that land values in Greenfield were going up. I do not remember what I determined my property was worth in 1914. I could not remember whom I talked with in 1914, when I visited here, other than Mr. Stonehouse, but I remember when I was here in 1914 Mr. Stonehouse told me that he had sold a portion of his land to Mr. Oakman. I do not remember what Mr. Stonehouse'told me he got for it.”

In 1915, among other persons that Dr. and Mrs. Dickie talked with before the contract was made was Julius H. Haass, president of the Wayne County & Home Savings Bank. Dr. Dickie testified:

“I do not remember that we got Mr. Haass’ idea of the value of this property. He told me in a general way, if he said anything at all. Julius H. Haass and I talked about real estate in Detroit. He said it was booming. Mrs. Dickie was with me, 1 think. That was about all that was said, that real estate was booming, but he did not know the value of land right out there.”

This was about June 2d. It appears that Julius H. Haass called in his brother, Walter F. Haass, and introduced him to Dr. and Mrs. Dickie. Dr. Dickie’s testimony is very vague as to where he first met Walter F. Haass, but we gather from the other testimony that Julius H. Haass then and there, in the presence of Dr. and Mrs. Dickie, told Walter F. Haass of the land in question; that they had an offer of $25,000 for it, and asked his opinion as to its value; that Walter F. Haass then told Dr. and Mrs. Dickie that there was a great boom in real estate in Detroit; that nobody could be sure of how long this would last; that it might go up and it might go down, and he told them of plaintiff; and that he valued plaintiff’s opinion with reference to real estate values very highly. Walter F. Haass later discussed the matter with plaintiff, and they went out and saw the land, and talked about how it might be handled by a, syndicate that they might form. A few days later Walter F. Haass introduced either the Dr. and Mrs. Dickie, or Dr. Dickie alone, to the plaintiff, and the latter stated that $25,000 was a fair price for the land. -There is no claim that the plaintiff was ever employed by either Dr. or Mrs. Dickie, or that he was the agent of either of them. The defendant testified:

“I always regarded Mr. Sorge as a prospective purchaser of my land, until I was sued by him.”
Mr. Stellwagen was the attorney for the defendant. On June 10, 1915, the defendant and her husband met with plaintiff in Mr. Stellwagen’s office, and after some discussion in which defendant asked $85,000 for the land, she finally agreed to take $30,000, and the agreement was drawn by Mr. Stellwagen and signed by the parties. The agreement was as follows:
“Know all men by these presents, that I, Louise Dickie, of Detroit, Michigan, of the first part, hereby offer to sell to Paul A. Sorge, of the same place, of the second part, that certain piece or parcel of land situated in the township of Greenfield, county of Wayne, and State of Michigan, described as follows, to wit: The north half of the north half of the south half of quarter section twenty-eight (28), of the ten-thousand-acre tract, containing twenty (20) acres more or less, for the sum of thirty thousand dollars ($30,000.00), to be paid as follows: five hundred dollars ($500.00) on the execution of this offer, the receipt whereof is hereby confessed and acknowledged; a Burton or Union Trust abstract of title is to be furnished, and within three (3) days after such abstract is furnished, said first party is to give second party or his assigns a warranty deed of said property, and said second party is to pay said first party at that time the further sum of nine thousand five hundred dollars ($9,500.00) in cash, the balance of the purchase price to be secured by a mortgage upon said property, payable three (3) years after June 15, A. D. 1915, with interest at the rate of six (6) per cent, per annum payable semi-annually, said mortgage to be dated June 15, A. D. 1915, and to be in the usual form of committee mortgages used in Detroit, Michigan, and a note for twenty thousand dollars ($20,-000.00) to be given to which said mortgage shall be collateral.
“It is contemplated by the parties hereto that said land' shall be platted into one hundred twenty-eight (128) lots more or less, having a frontage of about forty (40) feet each. It is agreed that there shall be released from said mortgage four (4) or more lots on payment of two hundred fifty dollars ($250.00) for interior lots, and at the rate of three hundred dollars ($300.00) for corner lots, not less than four (4) lots, to be released at any one time. If said abstract when furnished does not show merchantable title, said five hundred dollars ($500.00) shall be returned to said second party. If said abstract does show merchantable title, and said second party refuses to complete the purchase, said $500.00 shall belong to first party. In case the purchase is completed, said five hundred dollars shall be deemed as part of the purchase price. The warranty deed is to be furnished and the deal closed within three (3) days after the abstract is certified to date, and at any rate on or before the 25th day of June, A. D. 1915.
“Said first party agrees that she will appoint a trust company or some other person in Detroit as her attorney-in-fact with full power to join in the plat of said property and to execute releases from said mortgage as same may be called for. And said second party hereby agrees to purchase said land on the terms above specified.
“Dated, Detroit, Michigan, June 10, A. D. 1915.
“Louise Dickie. [L. S.]
“Paul A. Sorge. [L. S.]”

The plaintiff’s check for $500 was delivered to the defendant on June 10,1915. It never has been cashed, and was tendered to the plaintiff at the hearing. The abstract was given to the plaintiff by the defendant on June 11, 1915, at which time it was certified only to January 20, 1913. The plaintiff had it sent to the abstract company to be certified to date, and received it back from the company on June 28, 1915.

It appeared from the abstract that about June 17, 1915, a bill of complaint was filed by John W. Lathrop against Mrs. Dickie praying for specific performance of an alleged agreement to sell said land to him, and the defendant was enjoined from conveying the land. Before the signing of the agreement of June 10th neither the defendant nor Dr. Dickie told plaintiff or Walter F. Haass of the Lathrop transaction, but immediately after the service of the injunction on Mrs. Dickie she, or Mr. Stellwagen for her, told plaintiff or Mr. Haass about the suit. There was testimony to the effect that Walter F. Haass told Dr. Dickie that he was the attorney of the plaintiff before the contract was signed. It is undisputed that both Dr. and Mrs. Dickie talked with W. F. Haass, relative to the equities and facts involved in the Lathrop suit, and from their statement it appeared to Mr. Haass, and he so stated to them, that they should win that suit. The parties disagree materially as to what occurred at this time. Walter F. Haass testified, at the hearing, as follows:

“Without considering the other matter, they told me that Mr. Stellwagen thought they could get the matter on immediately, and that the matter could be settled at once, and I concurred in that. Undoubtedly they would win their suit, and I agreed with them, and it was determined between — we all determined we would wait until that matter came on, with the sale to us; that the sale to us would remain, and they were afraid, probably, we might sue them for damages, or. we might attempt to get damages from them. I assured them there would be nothing of that kind.”

After testifying to a conversation with Mr. Stone-house, in which he had stated that the price was inadequate, Dr. Dickie testified:

“The next day we went to see, Mrs. Dickie and I went up to Mr. Haass and told Mr. Haass that Mrs. Dickie wanted $35,000. Everybody around there was holding out for $2,500 [an acre], and said they were going to get it. Mrs. Dickie said they are going to get it all around there. That was on the 12th day of June, two days after the signing. I saw Mr. Walter Haass shortly after that and asked him if he saw Mr. Stellwagen he might do some good as to expedition. If he had any influence, otherwise to use it, because we wanted the Lathrop case out of the way. I never employed Mr. Haass in any capacity. I asked Mr. Haass to do something to get the Lathrop matter out of the way because we had been talking about the matter.
“Q. That was a matter of fact because Haass’ client had contracted with Mrs. Dickie whereby he had a right to purchase the land?
“A. Mr. Haass belonged to a syndicate. Mr. Sorge told us, whenever there was anything we wanted to say, to give it to Mr. Haass. Mr. Haass saw Mr. Sorge frequently.
“Q. You always knew that?
“A. Yes. He was a member of the syndicate.
“Q. In pursuance of that, you assured Mr. Haass that you and Mrs. Dickie were doing and would do all that you could do to get the Lathrop matter out of the way?
“A. Yes. We wanted to defeat Lathrop, and we wanted the Lathrop matter out of the way.
“Q. You wanted it out of the way to complete the deal with Sorge?
“A. No, we were not satisfied with it. Mrs. Dickie went up the day when she was served with the summons. from Lathrop to tell them we were not. She said she released them. She had a contract and check. Mr. Haass said: ‘Mrs. Dickie, I do not want to give you any trouble. We will get along and we will just let the matter rest.’ He would not take it.
“Q. What he said was that if the Lathrop matter was determined against you, he would not hold Mrs. Dickie to her bargain?
“A. Yes.
“Q. That is what he said and what he meant?
“A. Yes.
"Q. As a matter of fact, you did not release Mr. Sorge, did you?
. “A. Yes. We told him they were released.
“Q. You did not give back the check?
“A. Yes, we offered to give it back, but they would not take it. We left it with Mr. Stellwagen, and gave him orders to send the check because we were going to Europe.”

The Lathrop suit was never tried. Dr. and Mrs. Dickie made a trip to Germany in October, 1915, to get the original cablegram relating to the Lathrop matter. The defendant had asked Mr. Haass to speak to Mr. Stellwagen to have him hurry up the Lathrop suit. That suit was finally settled about August 5, 1916, through the efforts of Mr. Haass, who, for the plaintiff, paid $500 of his money, and received a stipulation for a discontinuance of the suit, and a quitclaim deed running to the defendant. This was done without express authority from the defendant, but with the knowledge of Mr. Stellwagen, her attorney, and the papers were left with him. Upon that subject Mr. Haass testified:

“I have testified that I paid Prentis & Mulford for Mr. Lathrop $500 for discontinuance of the Lathrop suit and a quitclaim deed running to Mrs. Dickie, covering the land in question. I did not have any express authority from Mrs. Dickie to pay this money.
“Q. By what authority did you settle this matter, or close this deal?
“A. Mrs. Dickie and Dr. Dickie had often asked me to do everything in my power to get that matter out of the way and get it closed, but they never authorized me to pay out any money, and I am making no claim that I am entitled to reimbursement for that. Before paying this money I made some attempt to get express authority from Dr. Dickie.”

It was the claim of the defendant that after the service of the injunction she not only offered to return the check, but to rescind the contract, on the ground that she could not deliver title. This was specifically denied by both the plaintiff and Mr. Haass. Both the plaintiff and Mr. Haass testified that defendant did not ask for more money until after her return from Germany in June, 1916. It was also claimed by defendant and testified to by her, and also by Dr. Dickie, that, about October 3, 1915, just before they left for Germany, they called on the plaintiff, and Dr. Dickie testified that the latter said, “What is to become of my contract if the bottom goes out of the land?” And that defendant said, “We will release you; we will take back our land, but if the property goes up, the price must go up also”; and that Dr. Dickie said to plaintiff, “What is sauce for the goose is sauce for the gander,” and that plaintiff smiled. Defendant testified:

“I told Mr. Sorge we were going, and it was getting difficult and dangerous crossing the sea, and I said I would not get back during the winter. He says, ‘What will I do if you are not here?' I says, T will take it back, and I am satisfied the land will increase, and you will make it good.’ He says, ‘Yes.’ ”

This was denied by plaintiff, who testified that there was never any such conversation, and that he had never made any agreement to res'cind or modify the contract of June 10, 1915. Finally, on August 11, 1916, the plaintiff called at the residence of Dr. and Mrs. Dickie to make tender of the $9,500 and demand a deed. The defendant was ill and could not be seen. This was on Friday evening. Upon this subject Dr. Dickie testified:

“I said I would be down tomorrow morning with Mrs. Dickie, if she was well enough. At the same time I says, ‘Mr. Sorge, we think you ought to make Mrs. Dickie a substantial addition in view of what she has done for you, or gone through for you.’ I told him at the same time the contract did not exist, as he will tell you. The contract in our opinion was not in existence. That was the same evening he called there, on the 11th of August, when they wanted her to sign it. I told him the contract had no more validity, they having broken it, before the 25th of June, 1915. Consequently the sum of money they offered was insufficient because it did not include any assessments (?) Mr. Haass had promised, or the interest.”

After the plaintiff left, Dr. Dickie wrote and mailed to him the following letter:

“My Dear Mr. Sorge: I regret to say that Mrs. Dickie finds it absolutely impossible to do any business on tomorrow. She is so unwell that we must delay the matter. Friday night. Yours truly,
“J. F. Dickie.”

The bill of complaint herein was filed on August 14, 1916. The defense in the court below, and here was that:

(1) The contract was not mutual, in that after June 25, 1915, the plaintiff was not, by its terms, bound to buy the land. That the abstract of title when furnished did not show a merchantable title, and for that reason the deal could not be closed.

(2) The parties did not deal at arm’s length.

(3) The consideration was inadequate.

The learned circuit judge, who heard the evidence and saw the witnesses, found for the plaintiff, and entered a decree for specific performance of the contract. In a written opinion he said:

“I am of the opinion that the plaintiff has made out his case and is entitled to a decree as prayed for in his bill. I do not think the first position taken by the defendant is of any force. It was no fault of the plaintiff that this land was incumbered. It was no fault of the plaintiff that the defendant could not give a deed on or before the 25th day of June, 1915. It is not claimed that it is the defendant’s fault, but it is plain to be seen that by some action of the defendant, which was probably set forth in the bill filed by John W. Lathrop, that she placed herself in the situation in which she could not convey at that time to the plaintiff, Mr. Sorge, but the plaintiff, however, should not be held to be in fault because of that incident, and I am of the opinion that that is not a defense, and that the defendant is not absolved from the making of a deed under the contract if the plaintiff desires to have it done.
“The second position of the defendant in the case probably states the truth that the land was of a speculative value at the time the contract was made.
“As to the third claim of the defendant, that defendant had no knowledge of the valúe of the land, and that the land was of a greater value than plaintiff gave for it, and that the plaintiff knew that it was and misled the defendant to sell at a price far below its value, I am of the opinion that the proofs do not sustain such a position. The truth is that the defendant and her husband, Dr. Dickie, who acted with and for her, are intelligent, cultured people, and they are not people easily imposed upon. The land was open to their view and they were permitted, if they desired to do so, to get all the information they could as to its value, and the proofs show that they got considerable information in relation to it before and after the contract was made; and I think the position taken by the defendant that she was misled by the plaintiff, or that the plaintiff and his advisers did anything which would mislead her, is not supported by the proofs. Therefore it is my judgment that that defense is not made out.
“I think it may be well for me to state another thing in connection with this matter, and that is this: That from the proofs in the case as they appear to me, I am satisfied that at the date of this contract, June 10, 1915, the plaintiff was giving about all that land was worth at that time, and I am of the opinion that had the Lathrop suit not been commenced so that she could have carried out her contract and had the matter closed before the 25th day of June, that it would have been done, and that that would have been the end of it. In other words, I am satisfied that the defendant was in no way misled as to the value of the land at the time the contract was made, and that had it not been for the unfortunate circumstance of the Lathrop suit and the advance in value after that, the deal would have been consummated, and that the contract was entirely free from deception or fraud of any sort on the part of the plaintiff towards the defendant.” '

Both parties have appealed to this court.

The contract when made was in its terms certain and mutual. There was no agreement to cancel the contract if the abstract failed to show a merchantable title. When the abstract showed the pendency of the Lathrop suit, the plaintiff might have elected to receive back the deposit and release the defendant, or take the inferior title. Eppstein v. Kuhn, 225 Ill. 115 (80 N. E. 80, 10 L. R. A. [N. S.] 121); Coveil v. Cole, 16 Mich. 223; Anderson v. Kennedy, 51 Mich. 467 (16 N. W. 816); Smith v. Mathis, 174 Mich. 262 (140 N. W. 548); Lansing Co. v. Rogers, 183 Mich. 334, 338 (149 N. W. 1000).

It is the claim of the plaintiff that the parties elected to hold the contract, and that he proceeded to plan the development of the property, to maintain the status quo, pending the time when the Lathrop suit should be settled or determined, thus waiving the terms of the contract as to the time of performance. We think that it is well settled that the time of performance of a land contract, can be waived by the parties, and that such waiver may be shown by their acts. Robinson v. Trufant, 97 Mich. 410 (56 N. W. 769); Cughan v. Larson, 13 N. D. 373 (100 N. W. 1088-1091).

We think that the claim of the plaintiff in this regard is sustained by the weight of the evidence, and by the conduct of the parties. It is almost inconceivable that the plaintiff and his attorney would have interested themselves and spent their money in getting the Lathrop suit out of the way, and would have proceeded with the syndicate project, except upon the theory that the contract of the parties was in force. We cannot agree with defendant’s counsel in the claim that plaintiff never made an attempt at performance of the contract until in August, 1916. It does appear that the price of land was fluctuating in June, 1915. The defendant knew that fact, as may be gathered from her testimony, and that of Dr. Dickie.

Did the parties deal at arm’s length? The contract upon its face was a fair one. There were no confidential relations. Where the simplicity and credulity of parties are taken advantage of by the shrewdness, overreaching and misrepresentation of the other party, and they are thereby induced to do unwittingly something the effect of which they do not intend, foresee, or comprehend, and which, if permitted to culminate, would be shocking to equity and good conscience, a court of equity may with propriety interpose.

We have examined the testimony with care, and we are unable to find any evidence that the plaintiff or Mr. Haass, in any way or manner; violated the rule above stated. They seem to have been open and frank in their statements and dealings with the defendant, and with her.husband. Defendant testified that she had been offered a larger price, but did not explain why she did not accept. She testified, in answer to questions by her own counsel, that she did not believe what plaintiff told her of the value of the land, but that she accepted his price because he said he would not give more. She seems to have made the bargain with her eyes open, and in the presence of her own counsef. We are unable to find from this record that the contract was ever changed.

In the light of all the testimony, we cannot say that the contract price was inadequate. We adopt the language of the circuit judge upon that subject. There is abundant evidence that the value of the land has greatly increased since June, 1915. It was no secret that plaintiff, with Mr. Haass and others, intended to plat and sell the land. That they would sell at a large advance was to be expected. See Ogooshevitz v. Arnold, 197 Mich. 203, 212 (163 N. W. 946, 949). Without further discussing the equities of the situation, it is sufficient to say that in our opinion there are no equitable reasons why the contract as made on June 10, 1915, should not be specifically performed.

The decree of the circuit court is, in all things, affirmed. The plaintiif appealed upon the question of interest. The decree being affirmed, under the circumstances, neither party will recover as against the other any costs in this court.

Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred. Kuhn, C. J., did not sit.


text:
    HOLCOMB & HOKE MANUFACTURING CO. v. CATALDO.
    1. Trial — Instructions—Breach of Warranty — Damages — Rescission — Evidence.
    In an action to recover on notes given for the purchase price of a popcorn machine, in which defendant sought to recoup for breach of implied warranty, an instruction on damages that if the machine was not as represented defendant could recover the amount paid, was erroneous where there was no evidence of rescission of the contract, and the only evidence of defendant’s damages was that the machine was worthless and he had set it aside.
    2. Damages, Measure of — Breach of Warranty — Sales.
    The measure of damages for breach of an implied warranty of a machine is the difference between its value if it had been fit for the purpose intended and what it was actually worth.

    3. Sales — Title to Personalty — Right to Sue on Notes — Right to Possession.
    Where title to a machine is retained in the seller merely for security for the payment of the purchase price, the seller may sue on notes given for the purchase price without losing its security, and it may, at any time before payment of the notes, or the judgment thereon, take possession of the machine.
    Error to Montcalm; Davis, J.
    Submitted October 15, 1917.
    (Docket No. 124.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by the Holcomb & Hoke Manufacturing Company against Peter Cataldo on certain promissory notes. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment, for defendant. Plaintiff brings error.
    Reversed.

      E. J. Bowman, for appellant.

      Floyd E. Winter, for appellee.

      On measure of damages for breach of implied warranty, see note in 18 L. R. A. 384.

   Stone, J.

This is an action of assumpsit begun in justice’s court in the city of Greenville to recover upon 13 promissory notes of $20 each, dated May 1, 1915, given by the defendant to the plaintiff in part payment for a “Butter-Kist” popcorn machine. The plaintiff is an Indiana corporation, and was engaged in the business of manufacturing said machines, which were designed to pop corn automatically. The defendant operated a confectionery store at Greenville.

Plaintiff’s declaration was the ordinary declaration in assumpsit upon the notes and for goods sold. The plea was the general issue with notice of recoupment, alleging that the machine was sold and delivered without an opportunity of inspection or examination; that plaintiff represented and agreed that said machine was free from all defects or injury, mechanically sound in principle and capable of popping corn, and buttering same ready for sale without any attention from the operator, other than putting such corn in sacks, boxes, or other containers for sale, and would keep said corn when popped in a clean, sanitary condition; that said machine was defective and injured when delivered, mechanically unsound and incapable of performing the service for which it was purchased; that said machine, through defective wiring or otherwise, was, when in use, charged with electricity in all metallic parts thereof, and dangerous to the operators and customers, unpleasant to work around, and would not operate continuously if kept charged with corn and butter, as had been warranted, represented, and agreed before sale, and that after a short period it would become overheated so that it would burn the popcorn, become inoperable and useless until permitted to cool off; that a large part of the purchase price had been paid by defendant, under representations by said plaintiff that it would make said machine over so that it would be in conformity with the said guaranty, but that the plaintiff had wholly failed and neglected to do so, and that the machine was worthless and useless to the defendant; and that, by reason of the breach of said warranty and representations, defendant had sustained damages in a large amount, to wit, $500, which damages he would recoup, etc.

In justice’s court judgment was rendered in favor of the plaintiff, from which judgment defendant appealed to the circuit court.

The machine for which the notes sued upon were given was sold upon a written order and contract which provided for the payment of $25 cash with order, $75 C. O. D., and the giving of the notes, and the retention of title and right of possession in plaintiff until the notes were paid. The contract contained no warranty or guaranty, and provided that agents were not authorized to change, amend, or make any representations not contained therein. On June 15, 1915, defendant received the machine, which- was set up, and operation demonstrated by plaintiff’s agent that sold the machine to defendant.

The upper part of this machine, called the upper cabinet, had been injured in transit, but was operated by defendant until August, 1915, when a new upper part was furnished by plaintiff, at defendant’s request, and was substituted for the injured part of the machine, and the injured part was returned to plaintiff. There were originally 20 notes, of $20 each, payable at intervals of two weeks, and seven of the notes were paid by the defendant as they became due.

The defendant testified that he was unable to operate the machine satisfactorily for reasons stated in his notice, and there was testimony tending to support the notice. On September 24, 1915, defendant authorized his attorney to write the following letter to the plaintiff:

“Gentlemen: In reply to your many inquiries directed to the Philadelphia Candy Co. or Peter Cataldo, of this city, in relation to the corn popper, I desire to say: That after you finally attempted to fix up the deal by sending him another machine, on account of the damage to the other, he set this one up and endeavored to accomplish something with it, but on account of some defect somewhere, the heat all went into the metal part above, and burned the finish off the wood; and if you should happen to put your hand on the metal anywhere, you are apt to get an electric shock.
“Mr. Cataldo informs me that he wants the machine, and is willing to pay for it as agreed, but will not pay another cent until he has one that operates properly, and if you cannot give him such a machine he will return this one upon receipt of the money paid you, allowing reasonable charges for rent.”

About the last of October, 1915, a representative of the plaintiff inspected the machine at defendant’s store. He testified, in substance, that the machine had not been properly installed, and found some escaping electricity; that he attached a ground wire, operated the machine, popped some corn with it, and that it seemed to be all right. Matters ran along about a year, until the fall of 1916, the defendant continuing to keep the machine, and using it more or less in his business, but all of the time claiming that it did not work properly. He was permitted to testify to representations, or an oral warranty, made by the agent at the time of the sale.

The only evidence of damage shown on behalf of defendant was his own testimony to the effect that the machine was worthless to him, and that at the time of the trial it was laid aside and not operating. At the close of defendant’s testimony the court ruled as follows:

“Strike out of the case any testimony that may have got in of the warranty made by the agent at the time of the sale, verbally.”

It appeared that the defendant had paid on the machine to the plaintiff $240.

At the close of all of the evidence plaintiff’s counsel moved for a directed verdict for plaintiff on the notes sued upon for the reason that there was no evidence that defendant had sustained any damages, nor of the amount of such damages, and that the jury could not speculate as to the amount. This motion was denied, and, in a colloquy which followed, the court, in the presence of the jury, said to plaintiff’s counsel:

“The machine was subject to your order. You had a contract in which if they didn’t pay you could go and get the machine. You have got not only this man’s notes, but you have got this machine, own it today, if you are a mind to take it.”

The court, after referring to Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286), submitted the case to the jury, evidently on the ground of an implied warranty. In its charge the court, although it had once stated to the jury “that the company retains the title, they own the machine until the last note is paid, unless they elect to bring suit, which they have done in this case,” also subsequently charged them as follows:

“But for the purposes of this suit I shall consider both of these contracts as contracts retaining title on the part of plaintiffs, which I think was intended by both parties, so, no matter how hard a contract they make with him, he is bound in law to fulfill, provided that they furnish him a machine fit and suitable for the purpose for which this was purchased; that is the only question in this case for you to determine, outside of the question of damages. If, on the other hand, they did not furnish him a machine fit and suitable to pop corn and do the work he bought it for, then they have failed in their contract, and not entitled to anything. The machine is theirs, they are at liberty to take it. That is, in brief, the situation in this case.”

Upon the measure of damages the court charged as follows:

“Now if you are satisfied in this case by a preponderance of the evidence that they furnished him a machine suitable and fit for the purpose he bought it for, then you find a verdict against the defendant for $289.70. If, on the other hand, you find it was not fit and suitable for the purposes for which he bought it — if it was he agreed to pay $450, there is no proof here what the actual damages were measured by dollars and cents he has suffered, no claim made by him of the damage in dollars and cents he has suffered by delays or injury to his credit or anything of the kind, and the damages would be what he paid, $240 — if you find the plaintiff is not entitled to recover in this case and that the defendant is, your verdict should be for $240 for the defendant, that being his measure of damages.”

The trial resulted in a verdict and judgment for the defendant in the sum of $240.

The plaintiff has brought the case here on writ of error, and error is assigned to the effect that the court erred in not granting plaintiff’s motion' to direct a verdict for plaintiff for the amount due on the notes, for the reason that there was no evidence in the case that there was any damage to the defendant, nor of the amount thereof, and that the jury should not have been permitted to speculate as to the amount. Also that the court erred in not granting plaintiff’s request to charge that, as a matter of law, after the defendant had kept this machine for two years, used it for substantially two years, as the evidence- shows, he could not be heard to complain. Also that the court erred in making the statement in the presence of the jury, above referred to. Also in charging that if it (the plaintiff) did not furnish him (the defendant) a machine fit and suitable to pop corn and do the work he bought it for, then it has failed in its contract and is not entitled to anything. “The machine is theirs, they are at liberty to take it, that is in brief the situation in this case.” Also that the court erred in its charge with reference to the measure of damages, as above set forth.

We are of the opinion that, under the evidence, the court erred in its charge upon the subject of the measure of damages. There is no evidence in the case of a rescission of this contract. The defendant had the machine in his possession at the time of the trial and had never tendered it back to the plaintiff, and had used it, from time to time, down to about the time of the bringing of this suit. There was no adequate evidence of the measure of defendant’s damages. Had the contract been rescinded, there would have been some ground for the defendant’s recovery of the amount which he had paid upon the machine, but he only sought to recoup in damages, and offered no evidence of the amount of his damages.

Manifestly, the measure of damages for the breach of an implied warranty would not be necessarily the amount of money which the defendant had paid upon the contract, but would have been the difference between the value of the machine, had it been fit and suitable to do the work intended, and what it was actually worth. The jury were directed in so many words, “that if you find the plaintiff is not entitled to recover in this case, and that the defendant is, your verdict should be $240 for the defendant, that being his measure of damages.” That, as appeared by the undisputed evidence, was the amount which he had paid upon the machine.

We do not think there was any error in the statement of the trial court in the presence of the jury, or in the charge, wherein it said: “the machine is theirs, they are at liberty to take it.”

It appears clearly from this record that title was retained in the machine by the plaintiff for security merely. Such being the case, under the authority of Atkinson v. Japink, 186 Mich. 335 (152 N. W. 1079), the plaintiff might sue upon the notes without losing its security, and that it might at any time before payment of the notes, or of the judgment thereon, take possession of the machine. But in our opinion, there was prejudicial error in the charge of the court upon the question of the measure of damages, and because of such error there was a miscarriage of justice in the case. The judgment of the circuit court is reversed, with costs to the appellant, and a new trial granted.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Stone, J. Per Curiam.

text:
    GOODSPEED v. WAYNE CIRCUIT JUDGE.
    1. Partnership — Limited Partnership — Corporations—Statutes.
    Partnership associations, limited, are governed hy the principles applicable to corporations.
    2. Same — Limited Partnership — Constitutional Law — Due Process oe Law — Statutes.
    Under 2 Comp. Laws 1915, § 7958, providing that no transferee of any interest in a limited partnership association shall be entitled thereafter to any participation in the subsequent business of the association, unless he or she be elected thereto, and any change of ownership, whether by sale or otherwise, which shall not be followed by election to the association, shall entitle the owner only to his interest in the association at a price and upon terms to be mutually agreed upon, and “in default of such agreement the price and terms shall be fixed by an appraiser appointed by the circuit court of the county where such association has its principal office, subject to the approval of such court,” no question of due process of law or constitutionality of the act is involved, in a proceeding to have an appraiser appointed to appraise stock, although such act does not provide the machinery or mode of procedure, as the details of procedure may be left to a court without invalidating the statute.
    3. Same — Limited Partnership — Statutes.
    A limited partnership association which accepts the provisions of a statute in Its incorporation is bound by the provisions of such statute.
    4. Same.
    A charter of a private corporation is a contract between the government and the corporators.
    5. Same — Limited Partnership — Appraisers of Stock — Equity —J ÜRISDICTION.
    Under 2 Comp. Laws 1915, § 7953, relating to the appointment of an appraiser to fix the price of stock and interest in a limited partnership association acquired by a transferee who is not elected to the association after such transfer, a circuit court has jurisdiction to act where notice is given by the service of a copy of the petition for the appointment of an appraiser with notice of hearing on the association, and it is represented at the hearing when the appointment of an appraiser is determined.
    6. Same.
    Under a by-law of a limited partnership association, providing that any person who is an employee or officer of the association and shall become the owner of one or more shares of stock, shall become a member thereof, provided that in case of a transfer, such person shall become a member only when he shall be duly elected and shall become an employee or officer, and when such transfer shall have been made on the books of the association, and when any stockholder shall cease to be an officer or employee, his stock shall automatically revert to the association, to be paid for at the true cash value thereof, and he shall thereupon cease to be a member thereof, proceedings for the appointment of an appraiser under 2 Comp. Laws 1915, § 7953, may be maintained by a transferee of stock where the transferor, who has ceased to be an officer or employee of the company has not received payment of the true cash value of his stock.
    On Motion for Rehearing.
    7. Same.
    The act of appointment of an appraiser of stock of a partnership association, limited, may be lawfully performed by the circuit court in the manner pointed out by statute.
    Mandamus by Estelle Morris Goodspeed to compel P. J. M. Hally, circuit judge of Wayne county, to vacate an order setting aside an order appointing an appraiser.
    Submitted September 20, 1917.
    (Calendar No. 27,777.)
    Writ granted December 27, 1917.
    Rehearing denied March 28, 1918.

      Charles H. Hatch, for plaintiff.

      Henderson & Henderson, for defendant.
   Stone, J.

This is an application by the plaintiff for a mandamus to require the defendant, one of the circuit judges of the county of Wayne, to set aside an order, made by him in said court, setting aside an order of that court previously made by him appointing Harry C. Moulthrop 'appraiser to appraise the value of the plaintiffs interest in certain shares -of the capital stock of the Goodspeed-Detroit Manufacturing Company, Limited, and dismissing the plaintiffs petition for the appointment of such appraiser.

It appears that on April 21, 1916, the plaintiff filed her petition in the circuit court for the county of Wayne for the appointment of an appraiser. By this petition it appeared that the Goodspeed-Detroit Manufacturing Company, Limited, hereinafter called the association, was organized in 1913 under Act No. 191, Pub. Acts 1877, as amended (2 Comp. Laws 1915, § 7950 et seq.) ; that the association was so organized that transfers of its capital stock were controlled by section 4 of the act (2 Comp. Laws 1915, § 7953), which provides in substance that:

“No transferee of any interest (in such association) * * * shall be entitled thereafter to any participation in the subsequent business of said association, unless he or she be elected thereto * * * and any change of ownership, whether by sale * * * or otherwise, which shall not be followed by election to the association, shall entitle the owner only to his interest in the association at a price and upon terms to be mutually agreed upon, and in default of such agreement the price and terms shall be fixed by an appraiser appointed by the circuit court of the county where such association has its principal office, subject to the approval of said court.” .

Said petition further showed that on and prior to April 10, 1916, Charles A. Goodspeed was a member of said association, owning 200 shares (par value $2,-000) of its capital stock; that on that day he transferred such shares to the plaintiff; that such transfer had not been followed by plaintiff’s election to membership in the association; that she had endeavored, but failed, to agree with the' association as to what she should be paid for her interest, and prayed for the appointment of an appraiser. A copy of the petition with notice of hearing was duly served on the association, and the petition came on for hearing before Judge Van Zile on April 29, 1916. On that hearing, counsel appeared specially for the association and filed a motion to dismiss the petition and set aside the service of notice for the following reasons:

“(1) Because said court has no jurisdiction in the premises.
“(2) Because no valid or lawful service of any process or other notice required or permitted by law in this matter has been made upon the said GoodspeedDetroit Manufacturing Company, Limited.
“ (3) Because the property rights of the GoodspeedDetroit Manufacturing Company, Limited, are attacked, threatened, and involved in and by said petition, and said petition attempts to deprive said Good-speed-Detroit Manufacturing Company, Limited, of its property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States of America, and in violation of the provisions of the Constitution of the State of Michigan.
“ (4) Because the procedure attempted in the above-entitled matter is in derogation of the right of the Goodspeed-Detroit Manufacturing Company, Limited, to a trial by a jury of the claims sought to be adjudicated in said matter, as guaranteed to it by section 13, article 2, of the Constitution of the State of Michigan.”

Counsel for both sides were heard by the court, and on June 23, 1916, Judge Van Zile filed a written opinion holding that the court would appoint an appraiser as prayed for in said petition. After several attempts to procure the entry of an order appointing the appraiser, the defendant (because of the illness of Judge Van Zile) set the petition down for hearing de novo, before himself, on September 13, 1916. The same counsel that had appeared specially before were notified, but no one appeared for the association, and on the same day the defendant made an order of court appointing Mr. Moulthrop appraiser.

On October 10, 1916, counsel for the association filed a motion, supported by affidavits, to set aside the order appointing the appraiser. The reasons given were, in substance, the same as those already stated, and the following additional reasons:

“Because at the time of the entry of said order, neither said court, nor Hon. Patrick J. M. Hally, circuit judge, had jurisdiction in said matter over the person of the said Goodspeed-Detroit Manufacturing Company, Limited, nor to make such order or to entertain said petition.
“Because said statute is void, because inoperative, in that among other things it fails to provide for notice to parties concerned; for a trial of the question whether the petitioner is or was the owner of stock in said Goodspeed-Detroit Manufacturing Company, Limited; for any record of the proceedings in the matter, or for a review thereof; for a method of procedure; for means by which effect may be given its provisions; for any inquiry as to the fitness of the person appointed appraiser to hold that position; for any notice to the opposite party of or for a hearing upon the question of the fitness of the person appointed appraiser; for means to compel the appraiser to act; and because said statute attempts to delegate judicial powers vested by the Constitution of the State of Michigan exclusively in the courts, and because said statute attempts to impose administrative duties upon the courts.”

In the affidavit in support of said motion, the following by-law of said association is set forth:

“Membership. Any person who is an employee or officer of this company and shall become the owner of one or more shares of the capital stock, shall become a member thereof, provided that in the case of a transfer, such person shall become a member only when he shall be duly elected as provided by law, and shall become an employee or officer of said association, and when such transfer shall have been made on the books thereof. When any stockholder shall cease to be an officer or employee of said association, his stock shall automatically revert to the association, to be paid for at the true cash value thereof, and he shall thereupon cease to be a member thereof.”

Counsel for both parties were heard before the defendant in open court on October 25, 1916, and on November 20, 1916, defendant filed an opinion holding that the order should be set aside, and plaintiff’s petition dismissed, and an order of court was. made by him to that effect on' January 17, 1917. It is to cause this last order to be set aside, and the order appointing the appraiser to stand as the order of the court, that this application is made.

It appears to have been the opinion of the defendant that the statute under which the proceeding was based is ineffective and void, because it does not properly provide the machinery or mode of procedure; and attention is called to the cases of Risser v. Hoyt, 53 Mich. 185 (18 N. W. 611), and Rothschild v. Burton, 57 Mich. 540, 546 (25 N. W. 490). And upon the question of what constitutes due process of law, the case of Hagar v. Reclamation District, 111 U. S. 701 (4 Sup. Ct. 663), is referred to, and defendant concludes as follows:

“I think it very clearly appears that there is no possible way by which this piece of legislation can be justified under our Constitution; and in consequence, the order to vacate the order appointing the appraiser will be granted.”

We are unable to agree with this conclusion, and we do not think that the cases cited are decisive of the questions here involved. In our opinion there is no attempt by the plaintiff here- to deprive the said association of any property. It is a'proceeding in accordance with the very statute under which the association was organized to have the interest of the plaintiff in the stock valued by an appraiser to be appointed as provided by that statute. Partnership associations, limited, are governed by the principles applicable to corporations. Rouse, Hazard & Co. v. Cycle Co., 111 Mich. 251 (69 N. W. 511, 38 L. R. A. 594); Staver & Abbott Manfg. Co. v. Blake, 111 Mich. 282, 287 (69 N. W. 508, 38 L. R. A. 598); Union Trust Co. v. Detroit Common Council, 170 Mich. 692 (137 N. W. 122).

This association had in its organization accepted the terms of this statute,’and it is bound by such provisions. Commissioner of Railroads v. Railway Co., 130 Mich. 248 (89 N. W. 967), affirmed in Grand Rapids, etc., R. Co. v. Osborn, 193 U. S. 17 (24 Sup. Ct. 310); Interstate R. Co. v. Massachusetts, 207 U. S. 79 (28 Sup. Ct. 26, 12 Am. & Eng. Ann. Cas. 555). In Shumway v. Bennett, 29 Mich. 451 (18 Am. Rep. 107), Justice Campbell, speaking for this court, said:

“As no one can be compelled against his will to become a member of a private corporation, or subject to its control, the legislature can prescribe such conditions as they deem most desirable, as the terms on which private corporations may be formed, and can intrust any functions in relation to such incorporation to such persons as they may designate, unless there is some constitutional limitation on the authority which may be so vested. The acceptance of a charter being the voluntary act of the persons incorporated, they can never be legally aggrieved by it.”

This court has held that the charter of a private corporation is a contract between the government and the corporators. Michigan State Bank v. Hastings, 1 Doug. 225, 234 (41 Am. Dec. 549); Flint, etc., Plankroad Co. v. Woodhull, 25 Mich. 99, 101 (12 Am. Rep. 233). In our opinion there is no constitutional question here involved. It is not proposed in this proceeding to take or condemn any property of the association, or even enter any judgment or condemnation against the association. The proceeding is not appropriate to try conflicting rights of the parties, nor is it attempted here. The proceeding is not unlike the agreement between parties to submit specific matters or questions, to arbitration. Such agreements have been sustained. Weggner v. Greenstine, 114 Mich. 310, 314 (72 N. W. 170).

The Michigan standard form of fire insurance policy provides for the appointment of appraisers to determine the amount of the loss. Such methods are resorted to by parties in deciding matters in controversy. The details of procedure may be left to a court without invalidating the statute. Swan v. Williams, 2 Mich. 427, 441.

The necessity of notice would be implied in a statute which provided for taking private property. Strachan v. Brown, 39 Mich. 168. But in our opinion sufficient and due notice was given the association in the first instance, and it was represented at the hearing when the appointment of an appraiser was determined, and the court had jurisdiction to act.

It is also urged that Mrs. Goodspeed is not a transferee of an interest in the association or stock because Mr. Goodspeed had ceased to be an officer or employee of the association. Without passing upon the validity of the by-law quoted, and giving it force according to its terms, it appears that Mr. Goodspeed, at the time he made the transfer to the plaintiff, had not lost title to his interest in the association nor his membership therein, for under the language of the by-law, he did not lose his interest nor his membership until he had not only ceased to be an officer or employee, but also had been paid the true cash value of his stock; and there is no claim that such payment has ever been made.

In our opinion, the order appointing the appraiser should stand, and the writ of mandamus should issue, with costs against the Goodspeed-Detroit Manufacturing Company, Limited, and it will be so ordered.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Broooke, and Fellows, JJ., concurred.

On Motion for Rehearing.

Per Curiam.

The principal reason, urged by the defendant herein, for a rehearing is that we did not decide the question: “Was or was not the appointment of an appraiser, under the statute in controversy, a judicial act?” Whether the action here invoked is judicial action, is not a controlling question. It is similar to the action of the circuit court in allowing the claims of coroners in cases of inquest on the dead body of a stranger. Section 15655, 3 Comp. Laws 1915.

It was held in Be Toepel, 139 Mich. 85, that such action called for the exercise of judicial discretion, and was so far judicial, that a person might be held guilty of a contempt of court, committed while the court was considering the matter. But, without dis-’ turbing that ruling, in People v. Hoffmann, 142 Mich. 531, it was held that such allowance or approval was not a judgment; and this doctrine was reiterated, and the cases collected and cited in Edwards v. Auditor General, 161 Mich. 639.

We think that the act in question may lawfully be performed by the circuit court in the manner pointed out in the statute.

The motion for a rehearing is denied.


text:
    CLARK v. CLARK.
    1. Divorce — Extreme Cruelty — Evidence—Sufficiency.
    On a bill by a husband for divorce on ground, of extreme cruelty, evidence of continued and repeated charges by defendant of illicit relations between plaintiff and the widow of defendant’s deceased brother, helé, to justify decree for plaintiff.

    2. Same — Alimony.
    A decree in a suit by a husband for divorce allowing defendant all of the real estate and personal property, acquired by her and plaintiff while living together as husband and wife, upon condition that she pay plaintiff $1,800 on or before seven years with interest and with privilege of paying $50 or more on the principal at any time, the payment of such sum being secured by lien on the real estate, and ordering plaintiff to pay clerk’s fees and court costs, but no other fees or costs being allowed to or against either party, was reasonable. j

    Appeal from Berrien; Bridgman, J.
    Submitted October 19, 1917.
    (Docket No. 61.)
    Decided December 27, 1917.
    Bill by Omar Clark against Ella M. Clark for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Gore & Harvey, for plaintiff.

      F. L. Hammond (I. W. Rif or d, of counsel), for defendant.

      On the question as to whether- charges of adultery is ground for divorce, see notes in 18 L. R. A. (N. S.) 303; 34 L. R. A. (N. S.) 360.

   Stone, J.

The plaintiff was granted a decree of divorce against the defendant on the ground of extreme cruelty. The parties were married December 20, 1891. The bill of complaint was filed January 7, 1914, and alleged that the principal acts of cruelty consisted of continued and repeated charges by defendant of illicit relations between the plaintiff and one Celia Franz, the widow of defendant’s deceased brother during the year 1913. This woman lived with her children upon a farm adjoining that of the parties, and plaintiff worked a part of the farm of the sister-in-law during that year. Before, that time the families had been somewhat intimate, but after the death of Mr. Franz, in March, 1913, and the return of Mrs. Franz to her farm, the defendant became extremely jealous of her husband, and accused him of improper relations with this sister-in-law. The bill charges many specific acts and occasions of vicious and false accusations against plaintiff by defendant made in the presence of their children, and also in the presence of the children of the sister-in-law.

The defendant answered the bill of complaint, and while she denied some of the specific charges made against her in the bill, yet in the main she sought to justify her accusations of improper relations between the plaintiff and Mrs. Franz. The parties have two children, both boys, one aged 19 and one 17 years at the time the bill was filed. There was much conflict in the testimony which was taken in open court. That on the part of the plaintiff tended to show that the defendant was insanely jealous, and openly charged plaintiff with conduct in violation of his marriage obligations, and that such charges were groundless and without foundation. The testimony on the part of defendant tended to show that plaintiff and his sister-in-law were much together, and that some of their conduct was at least suspicious, and well calculated to arouse the anger of a jealous wife. It must be said, .however, that much of the testimony on behalf of defendant consisted of vague rumors and suspicion, some of which was based on hearsay evidence. It would not be profitable to detail this evidence at length. The questions involved are purely questions of fact. It is a case where the circuit judge was in a better position (having seen the parties and witnesses, and having heard their testimony) to judge of the merits of the case than we can be. As was said by Justice Moore in Donaldson v. Donaldson, 134 Mich. 289, 291 (96 N. W. 448, 449):

“There are many aids possessed by the judge who-hears the oral testimony in deciding who of the witnesses are truthful that do not get upon the printed page.”

The case made by the plaintiff, if believed, justified, the decree made at the circuit. After a careful reading of the entire record, we are not prepared to say that the circuit judge erred in granting the plaintiff a decree, but are constrained to say that the decree was justified by the evidence. We are of the opinion that the claim of the plaintiff is sustained by the following cases: Whitmore v. Whitmore, 49 Mich. 417 (13 N. W. 800); Donaldson v. Donaldson, supra; Campbell v. Campbell, 149 Mich. 147 (112 N. W. 481, 119 Am. St. Rep. 660).

We also think that the property of the parties was justly divided by the terms of the decree.

In his bill of complaint the plaintiff described the property owned by the parties, and stated its value. The defendant in her answer neither admits nor denies those allegations. Circuit Court Rule No. 25, § 2, provides that:

“* * * Every material allegation in the bill, to which the defendant shall not make answer, shall be taken as admitted by the defendant.”

It-appears that soon after the marriage of the parties they made their residence on 43 acres of land which the defendant inherited from her father; that plaintiff worked said farm, and by their joint efforts the parties erected a new residence, three barns, set the fields to fruit and greatly improved the farm, so that the value increased from $1,700 to the sum of $6,000; that about the year 1908 the property was so conveyed that the parties became tenants by the entireties thereof. About 1909 the parties purchased 10 acres of land lying south of said 43 acres, and that was conveyed to them in the same manner; and the present value of said 53 acres is $7,000. The parties had acquired by their joint labors horses, cattle, farming implements, and personal property of the value of $800, and the outstanding indebtedness, on account of building and other matters, aggregated about $500.

The decree below granted to the defendant all of the real estate and personal property, upon condition that she should pay the plaintiff the sum of $1,800 on or before seven years, with interest at 5 per cent, per annum, payable semi-annually, and with the privilege of paying $50 or more on principal at any time. The payment of this sum of $1,800 was secured by a lien upon said real estate. By the terms of the decree the plaintiff was ordered to pay the clerk’s fees and court costs, but no other fees or costs were allowed to or against either party.

We think that the decree was reasonable, and the same will be affirmed in all respects, and no costs will be allowed in this court to either party.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.