author: McAlvay, J.

text:
    BIALY v. BAY CITY.
    1. Taxation —State Tax Commission — Review of Assessments —City Charter.
    Act No. 154, Pub. Acts 1899, giving the board of State tax commissioners authority to make a general and also a special review of assessment rolls, is not in conflict with the provisions of the charter of Bay City.
    2. Same — Powers of Board.
    The board of State tax commissioners has the power, at any time prior to the equalization of State and county taxes, to review the assessments, and add to the rolls assessments against persons omitted therefrom, or property omitted, provided the same is done according to the provisions of the statute. Act No. 154, Pub. Acts 1899.
    3. Same — Powers of Assessing Officers.
    After tax rolls have been passed upon by local boards of review, and are properly certified by the members thereof, no change can be made by the board or any assessing officer.

      4. Same — Review by State Tax Commission — Notice — Sufficiency.
    A notice of a general and special review of the assessment rolls of certain cities and townships by the board of State tax commissioners examined, and held, in form and substance a compliance with the statute.
    5. Same — General and Special Review — Time.
    The fact that a hearing on a general and special review was set for the same date was not objectionable.
    6. Same — Notice to Taxpayer — Necessity.
    A change in the amount of the personal property assessment of a taxpayer who was not named in the order was invalid.
    7. Same — Certificate of Review — Sufficiency.
    Where it appears from the record made by the board of State tax commissioners that a notice of a general and special review was given for the 19th of September, and the reviews were certified by the board to have occurred on September 19th and October 6th, the certification is insufficient, for uncertainty, and the changes made by the board in assessments are invalid.
    Case made from Bay; Shepard, J.
    Submitted January, 19, 1905.
    (Docket No. 81.)
    Decided March 28, 1905.
    Assumpsit by Robert C. Bialy against Bay City to recover taxes paid under protest. There was judgment for defendant, and plaintiff appeals.
    Reversed, and judgment entered for plaintiff.

      John L. Stoddard (E. A. Cooley and J. C. Hewitt, of counsel), for appellant.

      Brakie J. Orr, for appellee.
   McAlvay, J.

Plaintiff sued defendant in assumpsit to recover the amount of certain personal property and real estate taxes for the year 1903 paid by him under protest, and also for real-estate taxes paid under protest by the Fraser House Company, Stoddard, and Grant for the same year, the claims for which were duly assigned to him, amounting altogether to $3,307.62 and interest. The case was tried before the court without a jury. The facts found by the court, or so much thereof as may be necessary to print for the purposes of this case, are as follows:

The State and county tax rolls forth© year 1902, for each of the 11 wards of Bay City, were introduced in evidence. Said rolls, except as changed by the State tax commissioner, as hereafter shown, are copies of the city assessment rolls for the several wards of Bay City for the year 1902, and are severally certified in accordance with the charter ©f Bay City, by the comptroller of said city, to be copies of the city assessment rolls of the different wards of said city for said year 1902, and show that the several assessment rolls of said city were approved and certified by the comptroller and the board of review, in accordance with the charter of Bay City, on July 29, 1902. Upon said State and county tax rolls so offered and received in evidence, the real estate of the several parties, Bialy, Stoddard, Fraser House Company, and Grant, mentioned in the bill of particulars, was assessed to them, respectively. The several rolls show, by figures found in the columns headed, “Cash Value as Fixed by the Board of State Tax Commissioners,” “Be.al Estate,” “ Personal,” that the value of each and every parcel of real estate assessed was increased by the board of State tax commissioners 10 per cent, over the valuations on the city rolls for that year as fixed by the board of review. The State and county tax roll for the Second ward shows that a personal assessment was made against the plaintiff of $35,000, as fixed by the board of review, which amount was increased by the State tax commissioners to $70,000. The taxes against the real estate referred to, as well as the personal taxes against the plaintiff, were computed and carried out upon the basis of the valuations and amounts of assessments as so increased by the State tax commissioners, and the amount of the taxes so personally assessed against the plaintiff, and so assessed against the several parties, the plaintiff, Stoddard, Fraser House Company, and Gránt, on account of the real estate owned by them, is correctly shown in the bill of particulars.

In the back part of said State and county tax roll for the Second ward a certificate appears, of which the following is a copy:

“Certificate of Review and Changes Made by the Board of State Tax Commissioners.
“State of Michigan, | County of Bay. \ s&<
“ This is to certify that J. C. McLaughlin and Wm. T. Dust, members of the board of State tax commissioners of the State of Michigan, acting under and by virtue of authority in them vested by sections 152 and 153, of Act No. 154, of the session laws of the State of Michigan, for the year 1899, an order having been made and notice of hearing published and given as in said section provided, did in pursuance thereof, on the 19th day of September and the 6th day of October, A. D. 1902, review the assessments made by the assessors of the city of Bay City, county of Bay, and State of Michigan, of the following persons, firms, and corporations, and of their property subject to taxation in the Second ward, in said city, and upon such review have changed the said assessments of personal property upon the roll to which this certificate is attached, and.spread the same as follows, viz.:
■ Names of persons, firms and corporations — assessments reviewed. Amount appearing upon the roll before review by Board of State Tax Commissioners. Personal. Amount fixed and determined by Board of State Tax Commissioners. Personal.
Jennison Hardware Co. . §50,000 $100,000
F. W. Bradfield, Agt_____ 37,500 75.000
R. C. Bialy............ 35.000 70.000
Gustin, Cook & Buckley - 35.000 30.000
Bay City Gas Co........ 115,000 336,000
$363,500 §501,000
“Signed this 10th day of October, A. D. 1902.
“ J. C. McLaughlin,
“ Wm. T. Dust, '
“Members of the Board of State Tax Commissioners.”

There also appears, following the above certificate, a certificate of which the following is a copy:

“ Certificate of General Review Made by the Board of State Tax Commissioners.
“State of Michigan, ) County of Bay. j
“This is to certify that J. C. McLaughlin and Win. T. Dust, members of the board of State tax commissioners of the State of Michigan, acting under and by virtue of the authority vested in them, by sections 153 and 153, of Act No. 154, of the Public Acts of the State of Michigan, for the year 1899, an order having been made and notice of hearing having been published and given as in said sections provided, did in pursuance thereof- on the 19th day of September and the 6th day of October, A. D. 1903, review the assessments heretofore made by the board of assessors of the city of Bay City, in the county of Bay, and the State of Michigan, of all the property upon the roll, to which this certificate is attached, and did then and there 'determine in accordance with law the amount at which said assessments should be made, and did then and there change the assessment made by the said'board of assessors upon said roll to make it comply with law, and did then and there place upon said roll property omitted therefrom by said board of assessors, all of which changes made, and all additions made thereto by said board of tax commissioners appear upon said roll, and are spread thereon as shown by the amount and figures in the columns of said roll marked £ True and lawful assessments as determined by the board of State tax commissioners, ’ and opposite the respective names of persons, firms, and corporations appearing on said roll and so assessed for said amount (reference being hereby made to s.aid roll to which this certificate is attached) and as also shown by the recapitulations of said roll on page 40 thereof, and that the aggregate value of the real estate of the Second ward of said Bay City as found by them is $1,746,800, and that the aggregate value of the personal property of the Second ward of said city of Bay City as assessed is, $1,375,371, and that the total aggregate value of the assessable real estate of the whole of said city of Bay City as found by them is, $9,486,570, and that the total aggregate value of the assessable personal property of the whole of said city of Bay City as assessed is, $3,531,149, and that the total aggregate value of the assessable property of the whole of said city of Bay City as shown by above is $12,717,719.
“ Dated this 10th day of October, A. D. 1902.
“ J. C. McLaughlin, “Wm. T. Dust,
“Members of the Board of State Tax Commissioners.”

A certificate similar in form to the one above mentioned appears in the latter part of the rolls for each of the other wards of said city.

Said, findings of fact further show: That plaintiff and his assignors, Fraser House Company, Stoddard, and Grant, paid the taxes in dispute at the times and in the amounts stated in the bill of particulars, and the written protests were filed with the treasurer when payment was made; also the assignments of the said claims to plaintiff. That applications for allowance of these claims were made in due form to the common council of Bay City, and payment refused. That plaintiff resides in Bay City, lives six blocks from court-house, and knows all officers of Bay City. He received no notice in 1902 (unless chargeable with constructive notice by reason of notice published) that State board of tax commissioners would review his assessment, and had no knowledge that such review was contemplated. First learned of their action last of November or first of December, 1902. That he furnished statement as required, in full of all his taxable property, showing assets and liabilities. The total of all personal property other than that not in dispute h'ere did not exceed $30,000. Stoddard, McEwan, for Fraser House Company, and Hewitt, for Grant, testified practically same as plaintiff as to notice, knowledge of board meeting and review, and none of these parties had any notice, unless chargeable with constructive notice of the published notice. Bay City Tribune is a daily paper published in Bay City, and on Friday, September 12, 1902, the notice hereinafter mentioned was published. This was the only notice ever published, and no other notice than this was ever given to any of the parties interested in this suit. The following is a copy of the notice so published:

“Michigan Board or State Tax Commissioners— Order ror General and Special Review.
Whereas, the assessment rolls for the cities of Bay-City and West Bay City, and for the townships [naming them] in the county of Bay and the State of Michigan, for the year 1902, have heretofore been made by the several' assessing officers of said cities and townships and reviewed by the regularly constituted boards of review of said cities and townships, and
Whereas, said assessment rolls'are now subject to inspection and review by the board of State tax commissioners, or by any member thereof, and
Whereas, it has been made to appear and does appear • to said board that the assessment rolls of the said cities of Bay City and West Bay City and'of the townships [naming them] are so grossly irregular, and that property is so unlawfully assessed thereon that adequate compliance with law cannot be secured except by a general review of said assessment rolls, and that property subject to assessment and taxation in the city of Bay City and belonging "to [naming certain individuals and corporations] and divers other properties, individual and general, of said city of Bay City, have been omitted from said assessment rolls or not assessed in compliance with law. Also
-“That property subject to assessment and taxation in the city of West Bay City and belonging to [naming certain persons] and divers other properties, individual and general, of said city of West Bay City, have been omitted from said assessment roll or not assessed in compliance with law. Also '* * * [A similar paragraph as to each township being -included in said notice, naming individuals in four of -.them.]
Therefore ordered, That the assessment rolls of said ■cities of Bay City,-West Bay City and of the townships [naming them] shall be subject to general and special review and that [naming them] the/ respective assessing officers of said cities and townships, whose assessment or failure to assess are complained of, be required to appear at the office of the board of supervisors in the city of Bay City on Friday the 19th day of September, A. D. 1902, at two o’clock in the afternoon, and have with them at the said time and place the assessment rolls of their respective cities and townships for the year 1902: At which time and place said assessment rolls shall be subject to general and special review, and that all persons interested in said assessments may be heard, and that the assessments and omitted assessments of the persons and property above mentioned be then and there examined and considered by the board of State tax commissioners, or by some members thereof, and such action taken as will correct the irregularities complained of, if found to exist; this order and notice being published and given in compliance with law.
“Witness our hands and seals this 30th day of Julv, A. D. 1903.
“ A. F. Freeman,
“Wm. T. Dust,
“ Manville Jenks,
“ J. C. McLaughlin, “Ira T. Sayre,
“Board of State Tax Commissioners.”

For some time prior to and after the publication of said notice, said plaintiff, Stoddard, McEwan, and Hewitt were subscribers to, and daily readers of, said Bay City Tribune, but neither of them saw said notice.

The amount of the several taxes for State and county purposes hereinbefore referred to, had the same been computed, based, and carried out upon the valuations and assessments as fixed and determined by the board of review, and before the action of the State tax commission, and the amount of such taxes as computed and based upon valuations established by the State tax commissioners, and paid by the several parties, are shown by the following statement (the first column being the amount based upon the assessment as established by the board of review, and the second column the amount upon the valuations as increased and established by the board of State tax commissioners and paid by the parties ):

Bialy, personal tax.................. $24143 $482 87
Bialy, real estate................ 285 72 314 30-
Stoddard, real estate tax____________ 127 76 140 43
Fraser House Co., real estate tax____ 258 64 284 50
Chant, real estate tax---------- 1,895 93 2,085 52

Conclusions on Law.

Thereupon the facts so found and established upon áaid trial were duly considered by the court, and, as conclusions of law, the court did then find and determine:

1. That the action of the State Tax Commissioners in increasing the personal assessment of the plaintiff, Bialy, was legal and valid.

2. That the action of the State Tax Commissioners in increasing the valuation of real estate 10 per cent, was legal and valid. ' '

3. That the personal taxes ($482.87) assessed against the plaintiff, Bialy, upon an assessment of $70,000, is legal and valid.

4. That the real estate taxes assessed upon the real estate mentioned in the foregoing statement of facts, and paid by the several parties, Bialy, Stoddard, Fraser House Company, and Grant, were legally assessed.

5. That the plaintiff is not entitled to recover either the whole or any. portion of the taxes, personal or real, assessed and paid as shown in said statement of facts.

6. That the defendant is entitled to judgment.

And counsel for plaintiff did then and there duly except severally to each of the said conclusions of law. Thereupon the court, notwithstanding the objections and exceptions taken by counsel for plaintiff, on, to wit, the 2d day of June, A. D. 1904, rendered and entered judgment in said cause against the plaintiff and in favor of the defendant for its (the defendant’s) costs in the case to be taxed.

Error is assigned to each of the six foregoing conclusions of law, and also:

“Seventh. The court erred, in that it did not render and enter judgment upon the facts found in favor of the plaintiff and against the defendant for the full amount of the personal taxes paid by Bialy, and the real-estate taxes paid by Bialy, Stoddard, Fraser House Company, and Grant, with interest from the dates of payment, * * * or for the excess of the personal and real-estate taxes paid by them by reason of the increase in the assessments and valuations by the State tax commissioners, with interest thereon from the dates of payment.”

The plaintiff contends that the facts found do not warrant the conclusions of law. He insists that the board of State tax commissioners had no authority to review the rolls in question and increase the individual assessments. This contention is based upon the claim that the provisions of the tax law (Act No. 154, Pub. Acts 1899) are inconsistent with the charter of Bay City, and consequently, under section 107 (Act No. 206, Pub. Acts 1893) of the law, not applicable.

In the case of Board of State Tax Com'rs v. Board of Assessors of Grand Rapids, 124 Mich. 498, where practically the same charter provisions were under consideration, this coui't held that “the provisions of the amendatory act are not so far inconsistent with the city charter as to render them wholly inapplicable,” and that, “although apportionment of taxes among the wards could not be affected by a change in the assessment, the rolls may be corrected as to individual taxpayers, and no injustice be done to them thereby.”

In Grand Rapids, where this case arose, there was a charter provision as to two tax rolls — one for the city and the other for the State and county taxes: The latter a copy of the former, as is the case in Bay City. That case disposes of this question .against plaintiff’s contention, and decides that the board of State tax commissioners has the power, under this law, at any time prior to the equalization and apportionment of State and county taxes, to review the assessments and add to the rolls assessments against persons omitted therefrom, or property omitted, provided the same is done according to the provisions of the statute.

Plaintiff contends that the board cannot confiscate a taxpayer’s property without notice and without a hearing. It is well settled that after tax rolls have been passed upon by local boards of review, and are properly certified by the members thereof, no change can be made by said board or any assessing officer. In the amendatory act under consideration, by sections 152 and 153 authority is given to the State board of tax commissioners to review and examine tax rolls after the final review of the local board. These sections provide for two kinds of review — special and general. In this case the State board of tax commissioners on July 30, 1902, made the order heretofore referred to in the finding of facts, entitled, “ Michigan Board of State Tax Commissioners — Order for General and Special Review.” This order was intended to cover the requirements of sections 152 and 153 as to a special review of the assessments of the persons therein specially mentioned, in certain townships and wards, and as to a general review of all the assessments of all the townships and wards in Bay county; the date fixed for said review being September 19, 1902. In our opinion, this notice, in substance and form, complied with the requirements of these sections of the law, and the fact that the hearing of both reviews was set for this date is not objectionable. These sections also require a notice of .the time and place of hearing upon such orders to be given by publication in some newspaper published at the county seat. Such required publication was duly made by one publication in the Bay City Tribune, published at the county seat of Bay county. This is admitted to be the only notice given to any of the parties whose taxes are in dispute in this case. Neither the plaintiff nor any of his assignors were named in the order as persons whose assessments were to be specially reviewed. Plaintiff was already assessed in the Second ward of Bay City $35,000 upon personal property; having furnished to the assessing officer the required statement, under oath, showing his personal property, bank.st'ock, etc., upon which taxes were paid, about which there was no dispute, and which does not enter into consideration in this suit. On October 10, 1902, the commissioners, as required by sections 152 and 153, after the hearings, made and attached to the tax roll of the Second ward of Bay City two certificates, which appear in the finding of facts. The first entitled, “Certificate of Review and Changes made by the Board of State Tax Commissioners,” in which it is certified that, in pursuance to notice, they did on September 19 and October 6, 1902, review the assessments made by the assessors ‘ ‘ of the following persons, firms, and corporations, and of their property subject to taxation in the Second ward ” of Bay City, “and upon such review have changed the assessments of personal property upon the roll to which the certificate is attached, and spread the same as follows.” Among those in this list is the name of the plaintiff, changed from $35,000 to $70,000, as appears from said certificate herein-before set forth. The assessment of the plaintiff in this certificate is treated in the same manner as the assessments of those who were given notice by the publication. The second certificate referred to is entitled “Certificate of General Review Made by the Board of State Tax Commissioners,” and is, in terms, a general review of the property upon the roll. It is therefore clear that the tax commissioners did make a special and general review of this roll in question, as appears from the published notice and the certificates they attached to the roll.

In Board of State Tax Com’rs v. Quinn, 125 Mich., at page 130, this court, in construing sections 152 and 153, says:

“It seems to have been contemplated that the board should review the assessments of individuals. Hence section 152 provides for notice to persons whose assessments are questioned, and an opportunity for them to be heard. The board establishes the valuation, and its action is made final. * * * It is done by the board, and is called a ‘change’ and a ‘correction’ of the roll. Not only may the board deal with individual assessments, but, when a general review is required, it may be made. This is especially provided for, and indicates that what precedes it with reference to individual assessments was not supposed to cover a general review. ”

The notice above referred to by the court, provided by section 152, as already stated, was not given to plaintiff in this case, and consequently the “ change ” in his perSonal property assessment from- $35,000 to $70,000 was irregular and void.

Plaintiff owned real estate assessed upon the roll, the valuation of which, together with the valuation of the real estate of his assignors and all real estate in Bay City, was raised 10 per cent, by the State board upon the general review of the rolls. It is contended that the record shows that this review was had on the 19th day of September and the 6th day of October, 1902, and that the notice provided for a hearing September 19, 1902. This raises the question whether, from the notice and certificates, there is a presumption that the meeting and action of the board on October 6th was regular. Section 153 provides for a notice by publication of a hearing for a general review of a tax roll, specifying what the board may do, and that “said board or member * * * - shall proceed in all respects . as provided in the last preceding section.” This refers to section 152, which provides:

“ In case of review under the provisions of this section the said board or the member thereof acting in said review shall certify under his hand officially and spread upon said roll a certificate of the day and date at which said assessment roll was reviewed by him.”

This is the only statutory provision for the official certification of the reviews of said board. It is admitted that the notice published and hereinbefore referred to is the only notice ever given of this review. This notice was for the meeting of September 19th. We cannot presume that the review certified to have occurred on October 6th was under the notice for September 19 th.. The record made by the board does not warrant such presumption. A general or special review field without the required statutory notice is irregular and void. The reviews are certified to have occurred on September 19 and October 6, 1902. There appears from the record made by the board to have been a notice given of the review of September 19th, but no notice of that of October 6th. The certificates do not disclose which assessments were reviewed on the first date, when, as shown by the record, a lawful review could have been made. The certification is not sufficient, by reason of uncertainty. The review was not made according to the provisions of the statute. We therefore hold that the conclusions of the circuit court were erroneous, in holding that the increased personal property assessment of plaintiff was valid, and that the increased valuation of the real estate was valid. These taxes are invalid only as to the amount of the excess of the real and personal taxes by reason of the increase in the assessments and valuations by the State tax commissioners over the original assessments. There is no question raised as to the legality of the assessments on these rolls before the action of the State board. The amount of taxes wrongfully assessed against plaintiff and his assignors is determined without difficulty.

The judgment of the court below is reversed, and a judgment entered in this court in favor of the plaintiff for the amount of the increase under the assessments fixed by the board of State tax commissioners, paid by plaintiff under protest, with interest from date of payment, being the sum of $577.01.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    PLACE v. PLACE.
    1. Limitation of Actions — Interruption — Sufficiency — Adverse Possession.
    Under section 9721, 3 Comp. Laws, mere disturbance of the ^ possession of one claiming land is not sufficient to interrupt the running of limitations once begun.
    2. Estoppel — Pleadings.
    The fact that defendant filed a petition for alimony, in which she stated that plaintiff owned the' land in controversy, does not estop her from asserting title to such property, where the alimony was not granted.
    3. Trial — Instructions—Credibility of Witnesses.
    An instruction on the credibility of a party as a witness which improperly assumes that he was guilty of perjury in a prior suit is reversible error.
    4. Same — Harmless Error.
    A judgment will not be reversed for error which would have been corrected at the time but for appellant’s failure to call the court’s attention to it.
    Error to Oceana; Russell, J.
    Submitted February 8, 1905.
    (Docket No. 108.)
    Decided March 28, 1905.
    Ejectment by Hiram B. Place against Elizabeth Moe Place. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Hartwick & Skeels, for appellant.

      W. D. Fuller, for appellee. '
   Carpenter, J.

The parties to this suit were formerly husband and wife. September 36, 1887, plaintiff obtained a divorce from defendant on the ground of desertion. Prior to 1885 the property in controversy was occupied by these parties as their homestead. Since that time defendant has resided thereon, and plaintiff has resided elsewhere. The legal title is in plaintiff, and on the 21st day of July, 1903, he commenced this suit in ejectment to recover possession. Defendant claims to have acquired title by adverse possession. Whether she had so acquired title constitutes the sole issue in this case.

Plaintiff contends that there was no testimony warranting the finding of an adverse holding. He insists that according to the testimony the adverse holding did not commence to run until October, 1888 (less than 15 years before the commencement of suit), and that thereafter defendant acquiesced in plaintiff’s claim of the right to control the property. Defendant’s testimony warranted the jury in finding that the adverse holding commenced more than 15 years before the commencement of suit, viz., in October, 1887. She testifies that at that time plaintiff gave her the property, and that thereafter she has claimed the place as her own, and exercised full control over it. While it appears that during these 15 years plaintiff exercised rights of ownership over portions of the property, it is none the less true that, if defendant’s testimony is credited, she never acquiesced in any of these acts. If she did not, these disturbances of her possession would not interrupt the running of the statute of limitations. See section 9721, 3 Comp. Laws, which reads:

“No person shall be deemed to have been in possession of any lands, within the meaning of this chapter, merely by reason of having made an entry thereon, unless he shall have continued in open and peaceable possession of the premises for at least one year * * * or unless an action shall be commenced upon such entry and seizin, within one year after he shall be ousted or dispossessed of the premises.”

See Donovan v. Bissell, 53 Mich. 464. This section not only answers the complaint under present consideration, but it affords a complete answer to many other assignments of error discussed in plaintiff’s brief. We conclude, therefore, that there was evidence which justified the finding of an adverse possession.

■ In 1896 defendant filed a petition for alimony in the divorce proceedings, in which she stated that plaintiff owned the property in controversy. No alimony was granted on this petition, and therefore the trial court very properly refused to charge the jury, as requested by plain: tiff, that this statement estopped defendant from asserting title.

In charging the jury, the court said:

“ In order to obtain a divorce on the grounds of desertion, complainant must show that defendant left him and refused to live with him for fully two years,” and that he gave this instruction as bearing upon the question as to whether this plaintiff at the time of that suit was guilty of the crime of perjury;” that “ * * * you might take that fact into consideration as bearing upon the credit that might be given or should be given by you to his testimony in this case.”

In giving this charge the trial court assumed that the plaintiff testified in his divorce case that defendant left him. There is nothing to show that he so testified, and this assumption is unfounded unless plaintiff could not get his divorce without so testifying. ' I think he could get his divorce without so testifying. Defendant could desert plaintiff without leaving the matrimonial home. See Warner v. Warner, 54 Mich. 494. If plaintiff testified, as he swore he did, that defendant had not lived or cohabited with him for two years and six months, and if it also appeared, as consistently with this record it might, that defendant wrongfully refused to live with plaintiff as his wife, and insisted on his leaving her, a decree of divorce on the ground of desertion might have been granted. See 1 Bishop’s Mar. Div. & Sep. § 1711; Daeters v. Daeters (N. J. Ch.), 38 Atl. 950; Harding v. Harding, 22 Md. 337; Kinsey v. Kinsey, 37 Ala. 393; Shrock v. Shrock, 67 Ky. 682; Warner v. Warner, supra. There is therefore no testimony in the record tending to prove that plaintiff committed perjury in the divorce suit. The charge in question was prejudicial, for much depended upon, the credibility which the jury might attach to defendant’s testimony.

The trial court, in narrating defendant’s testimony to the jury, misstated it, to plaintiff’s prejudice. We do not refer to this as reversible error, for, according to proper practice, plaintiff should have corrected it at the time. See Smith v. McDonald, ante, 225. It is merely mentioned to guard against a similar mistake on a new trial.

We do not think that for the purposes of a new trial any other complaint demands discussion.

Judgment reversed, and a new trial granted.

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


author: Hooker, J.

text:
    STRONG v. WEBER.
    Appeal and Error — Questions Considered — Waiver of Error.
    Where, on error by defendant in an action for negligence, the only error assigned is refusal to direct a verdict for defendant for failure of proof as to his negligence, and defendant states that a new trial is not desired, and if reversal accompanied by denial of another trial could not be had, the error would be waived, and the evidence does not affirmatively and conclusively show absence of negligence, and plaintiff might produce, if attainable, other evidence of negligence without bad faith, the error will be treated as waived and the judgment affirmed.
    Error to Bay; Shepard, J.
    Submitted February 9, 1905.
    (Docket No. 117.)
    Decided March 28, 1905.
    Case by Arthur Strong against Henry Weber for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Simonson, Gillett & Clark, for appellant.
    ' Pierce & Kinnane {De Vere Hall, of counsel), for appellee.
   Hooker, J.

The defendant has appealed from a verdict and judgment for $610 for injuries received from the fall of a truss that had been raised and was being secured in position upon the walls of a building in process of erection. The plaintiff was a carpenter in the defendant’s employ. The only error alleged is that the court refused to direct a verdict for the defendant. Upon the oral argument we understood counsel for the defendant to say that a new trial was not desired, and that, if a reversal of the judgment could not be accompanied by the denial of another trial, he would waive the claim of error. We see no impropriety in this suggestion, and have examined the ' case with it in mind. We think that there is much force in the claim that no actionable negligence is shown upon this record. While this is true, the evidence does not affirmatively and conclusively show that this fall of the truss was not the result of negligence. Upon this record, if the merits were to be left to us, we should say that it is probable that no blame should attach to any one. The reason for our saying it is the absence of a satisfactory explanation of the cause of the fall of the truss. The parties and all witnesses seem unable to tell the cause. The plaintiff’s testimony is not so inconsistent with the negligent cause to make bad faith necessary upon his part to show additional facts proving such negligence, as has •usually been the case where we have denied new trials upon reversal. If there is evidence of such attainable, he should not be denied the benefit of it. If we should conclude that there was error in the course taken upon the trial, we should feel it a right of the plaintiff to have a retrial of the cause.

We' therefore treat the alleged error as waived, and the judgment is affirmed.

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


text:
    CITY OF BATTLE CREEK v. HAAK.
    .1. Assumpsit — Waiver op Tort — Statute—Validity.
    Section. 10421, 8 Comp. Laws, providing that, where an injury is occasioned by fraudulent representations or conduct for which an action on the case for fraud may be brought, an action of assumpsit may,be brought to recover the damages, is not unconstitutional.
    2. Trial — Instructions—Stating Issues.
    Where there was no occasion for reference to the several counts of the declaration in the charge, and the issues were fairly presented without such reference, there was no error in overruling a request to charge that no recovery could be had on a particular count to which a demurrer had been sustained.
    8. Pleading — Demurrer—Waiver.
    Pleading issuably to a count of a declaration after the sustaining of a demurrer thereto waives the question raised by the demurrer.
    4. Bills op Particulars — Amendment.
    The allowance of an amendment of a bill of particulars is discretionary.
    5. Fraud — Overcharges—Instructions.
    Where, in an action for fraud, it appeared that defendant had been furnishing lumber for the repair of plaintiff’s bridges and systematically raising the bills therefor, and an estimate of the overcharges could be arrived at only by subtracting from the aggregate of payments the aggregate of new lumber visible in the various structures, defendant was not entitled to an instruction that plaintiff was entitled to recover only the overpayment shown on each separate bill.
    6. Same — Instructions—Weight op Evidence.
    On an issue as to whether certain frauds had been perpetrated on plaintiff by defendant, an instruction that, if the jury believed the testimony of a certain witness, and believed the frauds to have been perpetrated, plaintiff was entitled to recover, was not erroneous as permitting a recovery on the testimony of such witness alone.

      7. Misconduct of Jury — Affidavits of Jurors.
    Affidavits of jurors will not be received to prove misconduct of the jury.
    8. Deliberations of Jury — General Average.
    That the jury ascertained the average of their views as to the amount of damages will not invalidate their verdict where there was no previous agreement to abide the result.
    9. Verdict — Amount—Computation—Definiteness.
    Where the verdict rendered was not in excess of the aggregate of the items of the bill of particulars, it was not objectionable ■ on the ground that there was'no tangible evidence as to any definite amount having been overcharged, and that it could not have been reached by any proper method of computation.
    Error to Calhoun; Winsor, J.
    Submitted February 14, 1905.
    (Docket No. 150.)
    Decided March 28, 1904.
    Assumpsit by the city of Battle Creek against Harry K. Haak to recover money obtained by. fraud and deceit. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      J. M. & J. L. Powers, L. B. Tompkins, and Frank W. Clapp, for appellant. " ' y

      O. Scott Clark (Arthur B. Williams, of counsel), for appellee:
    Where the jury reach their verdict by adding together the amount of damages that each juror is willing to award, and dividing the sum by Í2, such conduct is not ground for new trial, in the absence of a showing that the jury acted corruptly, or that they previously agreed to adhere to the result. Chandler v. Barker, 2 Har. (Del.) 387; Heath v. Conway, 1 Bibb. (Ky.) 398; Grinnell v. Phillips, 1 Mass. 530; Dorr v. Fenno, 12 Pick. (Mass.) 521; Village of Ponca v. Crawford, 23 Neb. 662; Cowperthwaite v. Jones, 2 Dall. (U. S.) 55; Harvey v. Jones, 3 Humph. (Tenn.) 157; Tinkle v. Dunivant, 84 Tenn. 503; Fowler v. Colton, 1 Pin. (Wis.) 331; Stanley v. Stanley, 32 Wash. 489; Watson v. Reed, 15 Wash. 440; Illinois Cent. R. Co. v. Able, 59 Ill. 131; City of Pekin v. Winkel, 77 Ill. 56; Barton v. Holmes, 16 Iowa, 252;
      Dana v. Tucker, 4 Johns. (N. Y.) 487; Dunn v. Hall, 8 Blackf. (Ind.) 32; Wilson v. Berryman, 5 Cal. 44; Schoolfield v. Brunton, 20 Colo. 139; Hoover v. Town of Mapleton, 110 Iowa, 571; Empson Packing Co. v. Vaughn, 27 Colo. 66; City of Colorado Springs v. Duff, 15 Colo. App. 437; Jobe’s Adm’r v. Weaver, 77 Mo. App. 665; Johnson v. Perry, 2 Humph. (Tenn.) 569; McDonnell v. Stage Co., 120 Cal. 476; Cleland v. Borough of Carlisle, 186 Pa. St. 110; Moore v. Railway Co., 100 Mo. App. 665; Owen v. Christensen, 106 Iowa, 394; Consolidated Ice Machine Co. v. Trenton Hygeian Ice Co., 57 Fed. 898; Turner v. Water Co., 25 Cal. 397; Guard v. Risk, 11 Ind. 156; Hamilton v. Railroad Co., 36 Iowa, 31; Deppe v. Railroad Co., 38 Iowa, 592; Sullens v. Railway Co., 74 Iowa, 659; Bailey v. Beck, 21 Kan. 462; St. Martin v. Desnoyer, 1 Minn. 156; Cortelyou v. McCarthy, 37 Neb. 742; Dodge v. Carroll, 59 N. H. 237; Conklin v. Hill, 2 How. Prac. (N. Y.) 6; Moses v. Railroad Co., 23 N. Y. Supp. 23; Forbes v. Howard, 4 R. I. 364; Luft v. Lingane, 17 R. I. 420; Handley v. Leigh, 8 Tex. 129; Lee v. Clute, 10 Nev. 149; Johnson v. Railway Co., 46 Fed. 347; Orange Belt R. Co. v. Graver, 32 Fla. 28; City of Kinsley v. Morse, 40 Kan. 588; Birchard v. Booth, 4 Wis. 67.
    The verdict should not be set aside even if there may be some evidence of improper practice upon the part of the jury, as long as the preponderance of evidence before the court is to the effect that no improper methods were employed. Parshall v. Railway Co., 35 Fed. 649; McNamara v. Dratt, 40 Iowa, 413; Fulliam v. City of Muscatine, 70 Iowa, 436.
    Affidavits or evidence of the jurors cannot be used to impeach their verdict or to show misconduct in the jury-room or improper methods used in arriving at their verdict. Wixom v. Bixby, 127 Mich. 479-486; In re Merriman’s Appeal, 108 Mich. 454-462; Murphy v. Murphy, 1 S. Dak. 316 (9 L. R. A. 820, and note); also note to Houk v. Allen, 11 L. R. A. 706 (126 Ind. 568); 14 Enc. Pl. & Prac. 905; Stull v. Stull, 197 Pa. St. 243; Hannum v. Inhabitants of Belchertown, 19 Pick. (Mass.) 311-313; Ladd v. Wilson, 1 Cranch (U. S.), 305; State v. Freeman, 5 Conn. 348; Haight v. Turner, 21 Conn. 593; Martin v. Ehrenfels, 24 Ill. 187; Allison v. People, 45 Ill. 37; Palmer v. People, 138 Ill. 356; Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385;
      Taylor v. Giger, Hardin (Ky.), 595; Steele’s Heirs v. Logan, 3 A. K. Marsh. (Ky.) 394; Campbell v. Miller, 6 Mart. (La.) 623; Cire v. Rightor, 11 La. 140; State v. Millican, 15 La. Ann. 557; Duhon v. Landry, Id. 591; Godfrey v. Soniat, 33 La. Ann. 915; Shepherd v. Inhabitants of Camden, 82 Me. 535; Cook v. Castner, 9 Cush. (Mass.) 266; Boston, etc., R. Corp. v. Dana, 1 Gray (Mass.), 83; Chadbourn v. Franklin, 5 Gray (Mass.), 312; Rowe v. Canney, 139 Mass. 41; Pratte v. Coffman, 33 Mo. 71; Sawyer v. Railroad Co., 37 Mo. 240; Brewster v. Thompson, 1 N. J. Law, 32; Randall v. Grover, Id. 151; Dana v. Tucker, 4 Johns. (N. Y.) 487; Clum v. Smith, 5 Hill (N. Y.), 560; Taylor v. Everett, 2 How. Prac. (N. Y.) 23; Hulet v. Barnett, 10 Ohio, 459; Willing v. Swasey, 1 Browne (Pa.), 123; Cluggage’s Lessee v. Swan, 4 Bin. (Pa.) 150; White v. White, 5 Rawle (Pa.), 61; Smith v. Culbertson, 9 Rich. Law (S. C.), 106; Mason v. Russell’s Heirs, 1 Tex. 721; Burns v. Paine, 8 Tex. 159; Cheney v. Holgate, Brayt. (Vt.) 171; Cochran v. Street, 1 Wash. (Va.) 79; Amsby v. Dickhouse, 4 Cal. 102; Castro v. Gill, 5 Cal. 40; Rutland v. Hathorn, 36 Ga. 380; O’Barr v. Alexander, 37 Ga. 195; City Council of Augusta v. Hudson, 94 Ga. 135; Jacobs v. Dooley, 1 Idaho, 41; Reed v. Thompson, 88 Ill. 245; Cummins v. Crawford, Id. 312; Niccolls v. Foster, 89 Ill. 386; Lechleiter v. Broehl, 17 Bradw. (Ill. App.) 490; Barlow v. State, 2 Blackf. (Ind.) 114; Dunn v. Hall, 8 Blackf. (Ind.) 32; Bennett v. State, 3 Ind. 167; Conner v. Winton, 8 Ind. 315; McCray v. Stewart, 16 Ind. 377; Haun v. Wilson, 28 Ind. 296; Stanley v. Sutherland, 54 Ind. 339; Abel v. Kennedy, 3 G. Greene (Iowa), 47; Butt v. Tuthill, 10 Iowa, 585; Bradt v. Rommel, 26 Minn. 505; McCormick v. City of Monroe, 64 Mo. App. 197; Dodge v. Carroll, 59 N. H. 237; Lindauer v. Teeter, 41 N. J. Law, 255; Messenger v. Fourth Nat. Bank, 48 How. Prac. (N. Y.) 542; Williams v. Montgomery, 60 N. Y. 648; Gale v. Railroad Co., 53 How. Prac. (N. Y.) 385; Moore v. Railroad Co., 24 Abb. New Cas. (N. Y.) 77; Lafoon v. Shearin, 95 N. C. 391; In re Snyder’s Estate, Wilcox (Pa. Lack. Co.), 190; Gurley v. Clarkson, 30 S. W. (Tex. Civ. App.) 360; Haley v. Cusenbary, 30 S. W. (Tex. Civ. App.) 587; Downer v. Baxter, 30 Vt. 467; Bull v. Commonwealth, 14 Grat. (Va.) 613; Howard v. McCall, 21 Grat. (Va.) 205; Moses v. Cromwell, 78 Va. 671; Elam v. Commercial Bank, 86 Va. 92; Phillips v. Town of Scales Mound, 195 Ill. 353; Schwamb Lumber Co. v. Schaar, 94 Ill. App. 544; Illinois Cent. R. Co. v. Souders, 79 Ill. App. 41; Clay v. City Council of Montgomery, 102 Ala. 297; Leighton v. Sargent, 31 N. H. 119; Walker v. Kennison, 34 N. H. 257; Tucker v. Town Council of South Kingstown, 5 R. I. 558; Luft v. Lingane, 17 R. I. 420; Robbins v. Windover, 2 Tyler (Vt.), 11; Studley y. Hall, 22 Me. 198; Pleasants v. Heard, 15 Ark. 403; Croasdale v. Tantum, 6 Houst. (Del.) 218; St. Clair v. Railway Co., 29 Mo. App. 76; Clark v. Manchester, 64 N. H. 471; Moses v. Railroad Co., 23 N. Y. Supp. 23; International, etc., R. Co. v. Gordon, 72 Tex. 44; Chesapeake, etc., R. Co. v. Patton, 9 W. Va. 648; Rumford Chemical Works v. Finnie, 2 Flip. (U. S.) 459; Janes v. Hoehn, 3 Ohio C. O. 433; Montgomery St. Ry. v. Mason, 133 Ala. 508; Ward v. Blackwood, 48 Ark. 396; Philips v. Stewart, 69 Mo. 149; Carpenter v. Willey, 65 Vt. 168; Marvin v. Yates, 26 Wash. 50; Kunkel v. Hughes, 6 Pa. Disk R. 356; St. Martin v. Desnoyer, 1 Minn. 156.
   Hooker, J.

The defendant was an alderman of the city of Battle Creek, and as chairman of the bridge committee had charge of the repairing of some of its walks, bridges, etc., for which he furnished the materials, bills, being filed, and allowed by the council from time to time, and afterwards paid. Suspicions of the honesty of the defendant having arisen, some members of the council made investigation of the items for which bills had been rendered by the defendant, and this led to the bringing of this, action to recover from him a large sum, claimed to have been paid for fraudulent items. A trial resulted in a verdict for $1,750 in favor of the city. The defendánt has brought the cause to this court by writ of error. '

There are pearly 200 assignments of error, but counsel have grouped them for the purpose of discussion, and marginal notes of exceptions in the record (a practice to be' commended ) have made reference to them easy. Many of these exceptions can properly be omitted from the discussion, as they raise no substantial points or questions of interest to the profession. A statement of the facts essential to an understanding of the respective questions can best be made in connection with their discussion. The testimony tended to show that one Toole, who was bookkeeper for the defendant from 'March, 1900, to August, 1901, made most, if not all, of the bills in question; that a bill for the lumber for a bridge called the “Angelí Street Bridge ” was for one wagon load more lumber than was furnished; that it occurred by mistake, and that Haak’s attention was called to it, and he said he intended to make it right at the next meeting of the council. On the occasion of a subsequent talk about this he said that he had intended to make it right, but the members did not notice it, so he let it go. This was in August, 1900. He stated further that all bills were made out from the defendant’s books by him (Toole), and that sometimes an excessive amount was entered in the books, and at other times the bills were made for more than the books showed; that this was done systematically, and in different ways — sometimes by increasing the number of pieces of lumber, and sometimes by mistakes -in computation. He stated that these things were done by defendant’s instructions, and included all bills made after the Angelí street bill was paid. The witness was unable to state the amounts. He testified further that after defendant’s fraud was discovered he produced a new set of books, which he told Toole to open, and copy some items from the old ones; that Haak stated to him in that connection that his counsel had advised this, so that the discrepancy between the books and the bills could not be shown. Toole did not finish this work. He testified that he concluded that he could not “copy the books and do as he [Haak] wanted him to,”so left his employment, and disclosed the situation to his uncle, one Patrick Hart, “including what he had done to assist in swindling the city,” and afterwards went to the law office of Hulbert & Mechem, where he met the mayor and other officials, and made affidavits in relation to the subject. This action followed, and was commenced by attachment. The declaration was in assumpsit, and com* prised two special counts, and the common counts.

Of the special counts, the first made reference to 3 Comp. Laws, § 10421, which was an act passed in 1897, and is as follows:

“An act to provide for bringing actions of assumpsit in certain cases, and to provide that in such cases the cause of action shall survive.
“(10421). Section 1. The People of the State of Michigan enact, That in all cases where, by the fraudulent representations or conduct of any person, an inj ury has been or shall be produced, either to the person, property, or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought- to recover damages for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit, and may be so declared upon.”

The reference to this act in the count was as follows:

“Whereby said plaintiff has sustained great damage, of, to wit, two thousand dollars (12,000); whereby a right of action has accrued to' said plaintiff, and said plaintiff does hereby claim all right and benefit which it may possess to bring and maintain this action under and by virtue of section 10421 of the Compiled Laws of 1897 of the State of Michigan, by virtue of which statute a promise has been and is implied by law on the part of said defendant to pay to said plaintiff its just damages arising from such fraud and deceit, whereby said defendant, upon, to wit, the said 7th day of August, A. D. 1901, became indebted to said plaintiff in the sum of, to wit, two thousand dollars ($2,000).”

The second count was substantially like the first, except that it concluded with the following language in place of that hereinbefore last quoted:

“Whereby said defendant overcharged said plaintiff in the several bills and charges above mentioned, and said defendant was overpaid by said plaintiff, and said defendant received of the money and funds of said plaintiff, without having given any consideration therefor, in the aggregate a large sum of money, to wit, the sum of two thousand dollars ($2,000), whereby said plaintiff has sustained great damage of, to wit, two thousand dollars ($2,000), whereby said defendant upon, to wit, the said 7th day of August, A. D. 1901, became indebted to said plaintiff in the sum of, to wit, two thousand dollars ($2,000).”

To these were added the common counts.

This declaration was demurred to, and the demurrer was sustained as to the second count, and overruled as to the other counts. Thereupon a plea of the general issue was filed. One of the grounds of demurrer was that the statute section 10421 was unconstitutional. Its constitutionality appears to have been considered and upheld in the case of First Nat. Bank of Ovid v. Steel, 136 Mich. 588.

Counsel requested the court to. charge the jury that—

“No recovery can be had upon the second count of the declaration, for the reason that a demurrer to said second count has been sustained by the court, and the plaintiff has not amended the said second count.”

. There is nothing in the record to which our attention has been called to indicate that the cause was submitted to the jury' upon the second count, or, for that matter, that their verdict was made to depend upon what they might think of any of the counts. There was no occasion for reference to the respective counts, and the learned circuit judge who tried the cause properly omitted allusion to the declaration, and clearly stated the issue to be whether the defendant had, through fraud and deceit, charged and received payment from the city for more lumber than he had furnished between the dates April 1 and August 8, 1901, and said that the theory upon which the case was submitted by the plaintiff was to charge him with all money paid for lumber furnished between said dates, and to credit him with all lumber so furnished. The declaration in the case (omitting the second count, which was not considered as a part of it) justified the trial of the case upon this theory, unless the bill of particulars precluded it, and there was no occasion for saying to the jury that they should or should not render a verdict upon one or another count. Such instruction would have been more likely to confuse than to subserve a useful purpose.

What has been said applies to several similar requests to charge, which we need not state at length. As to the questions involving the joinder of counts, and the sufficiency of the several counts, the disposition of the demurrer settled them.

The bill of particulars is lengthy, covering 3? pages of the record. It states that plaintiff’s demand consists of overcharges for lumber, which have been paid to the defendant. It states in a general way the purposes for which lumber was furnished. It then attempts to give tabulated statements of lumber charged for, i. e., defendant’s bills, which it claims to have been allowed and paid, each accompanied by a statement of lumber admitted to have been furnished, the remainder resulting from a subtraction of the latter from the former, constituting the overcharge claimed in each instance. Two items were added to this bill by way of amendment, against defendant’s objection. In passing, we may dispose of the assignment of error covering this amendment by saying that it was a discretionary ruling, and, moreover, it would be entitled to our approval, were we called upon to review it.

Counsel for the defendant urge that, under the bill of particulars, it was improper to permit the jury to dispose of the case upon the theory of the plaintiff, as stated by the trial judge, claiming that they should have been directed to find the specific amount of overcharge on each bill. They requested the court to charge that:

“There have been a large number of these bills introduced in evidence, and, in order to determine whether the plaintiff is entitled to recover for overpayments made to the defendant, you should consider each of these bills separately, and determine from the evidence-in the case, if you can do so, whether there has been an overpayment made on any of these bills, and, if so, how much such overpayment was in each bill; and, if you cannot so determine, your verdict must be for the defendant — no cause of action.”

This was accompanied by a request that ‘ ‘ no recovery can be had by the plaintiff in this case, for the reason that there is no evidence in the case from which it can be determined with a sufficient degree of certainty or accuracy how much lumber was delivered to. the plaintiff by the defendant, on any one or all of the bills paid by the plaintiff ; ” and error was assigned for a failure to give each of them.

The record shows that evidence tending to show shortage consisted in part of statements of witnesses who had examined the structures for which the several bills were rendered, and their computation of the amount of new lumber visible therein. An examination of the testimony shows that the money paid could only be arrived at by taking the aggregate of the bills, or such of them as the jury should find to have been paid. On the other hand, the proof of shortage was by testimony tending to show that the amounts stated in the bills were larger than the respective amounts furnished. The aggregate of the payments and the aggregate value of the lumber found to have been delivered, upon the respective bills, furnished the only method by which the total overcharge could be accurately determined. While the request tendered was not given, the jury were given to understand that it was only by finding overcharges upon some or all of these bills that a verdict could be rendered.

The court said:

“ In this case, if you believe the testimony of the witness James Toole in regard to the alleged frauds on the part of the defendant to be true, and that fraud was actually perpetrated against the city by the defendant Haak, in the furnishing of the lumber and receiving the same, then it is your duty to render a verdict in favor of the city and against the defendant for such an amount as you find the overcharges against the city in the various bills may amount to.”

Again he said:

“If you find that in any of the bills there has been a clerical mistake made, or any overcharge made and paid, that fact alone will not authorize you to find that there have been mistakes or overcharges made in other bills. And if you find that the defendant had conceived and was carrying out a scheme or plan to obtain more money from the city than the value of the lumber delivered, and he obtained the approval of the- officers and agents of the city to the bills presented by him, falsely representing them to be true, or by undue or improper means he obtained the approval of the city officers to the bills, he (the defendant) knowing them to be false and untrue, and in pursuance of his plan or scheme, then it is your duty to find a verdict for the plaintiff for the amount which you shall find that he (the defendant) so obtained.”

And again:

“ I instruct you that in order to entitle the plaintiff, the city of Battle Creek, to a verdict in this case, the city must show by a preponderance of evidence (and you will remember what I have said about that) not only that the city has paid for more lumber than has been delivered by defendant, but the amount of such overpayment must also be shown, together with the fraud of defendant. The burden of showing such overpayment and fraud also rests upon the plaintiff in this case. I instruct you that if the plaintiff has shown by a fair preponderance of the evidence that, through the fraud or false representations of the defendant, Harry El. Haak, it has paid him for more lumber than he actually delivered to the plaintiff during the time named, then it is your duty to determine the amount of such excess so overpaid by the city to the defendant, and to render your verdict for the plaintiff for whatever amount you may find such overcharge to be. And this you must determine from the proofs and bills which have been submitted to you in evidence. I charge you that, in order to determine whether the plaintiff is entitled to recover for overpayment made to the defendant, you have a right to consider each and all of the bills offered in evidence in the case, and from such evidence and bills determine whether there has been an overpayment made or not. And by your verdict, if any overpayment you find, you should find the sum, and so declare. And if you are unable to find any overpayment from the evidence and the bills in the case, and in such case you cannot so determine, then your verdict must be for the defendant — no cause of action.”

He endeavored to guard the rights of the defendant by saying:

“ In this case, if ybu believe the testimony of the wit-. ness James Toole in regard to the alleged frauds on the part of the defendant to be true, and that fraud was actually perpetrated against the city by the defendant, Haak, in the furnishing of the lumber and receiving the same, then it is your duty to render a verdict in favor of the city and against the defendant for such an amount as you find the overcharges aghinst the city in the various bills may amount to.”

In our opinion, the defendant did not suffer from the omission to give these requests, for they were sufficiently covered by the charge.

It appears to be assumed that the jury did not consider the items of the bill of particulars separately, but there was no other feasible method of arriving at a result, under the charge given, and we think the jury must have understood this.

A number of assignments relating to the instructions given may be passed with little comment: In Nos. 1 and 2, the court alluded to the overcharges as being between April 1st and August 8th. It is said that two bills were O. K.’d on July 22d, but not paid. There is nothing in the charge that warrants the inference that all bills between those dates contained overcharges for which recovery might be had. In No. 3, exception is taken to the instruction regarding the testimony of Mr. James Toole. It is hereinbefore quoted, and need not be repeated in this connection. Counsel say, “ The criticism is that it permitted the jury to find a verdict in favor of the plaintiff and against the defendant upon the testimony of witness Toole alone.” • The quotation itself contains a refutation of this claim. We omit further reference to No. i than the statement that, in our opinion, it was impossible for the jury to misapprehend the charge so far as to suppose that recovery could be based on bills anterior to April 1st or after August 8th. In No. 5 the instructions relating to the preponderance of proof, given on the occasion of the return of the jury for further instructions, contain no error.

There are about 156 assignments of error-, based upon rulings relating to the admission of testimony. We have examined each of them, and not only find no error in them, but feel justified in saying that they raise no legal questions that require discussion. We have much hesitation in appearing to criticise the judgment of counsel in such matters, especially in view of the circumstances under which it must be exercised, yet we must refuse to burden our opinions with discussions of such objections.

The remaining question relates to motion for new trial. The brief tabulates the errors relied on in that connection, as follows:

First. Errors of the court in charging the jury, and in refusing to charge as requested by defendant.
Second. Want of sufficient evidence to sustain the verdict.
Third. That the verdict was contrary to law.
Fourth. That the jury disregarded the evidence and the instructions of the court.
“Fifth. That the jury arrived at the amount of their verdict by an illegal method.
“Sixth. That the verdict was contrary to and against the evidence in the case. ”

The first is sufficiently covered by what has been said. The others may be discussed together, as they all relate to the alleged adoption by the jury of the principle of “general average ” in determining the amount of damage.

In support of this motion the defendant has not hesitated to unqualifiedly swear, in an affidavit, that the jury made no attempt at a computation, but agreed to determine the amount of the verdict to be given by taking one-twelfth of the aggregate sum of the opinions of the several jurors, which agreement was carried out. He failed to state how he knew what occurred in the jury-room. Another affidavit of similar character was made by three of the jurors, and this was not considered by the court, being rejected under the familiar rule that affidavits of jurors will not be received to prove the misconduct of the jury, and thereby impeach their verdict. Counter affidavits were made by several of the jurors, and one or two of those first mentioned subsequently filed affidavits, qualifying their first statements. From all the evidence furnished, the court found, and states, in substance: That there was much discussion and computation-of the amount that plaintiff should recover. That there was a proposal at one stage of the deliberations that each juror mark the amount that he thought plaintiff should recover, and that this was done, and the amounts were read. Some jurors wrote down these amounts, after which it was suggested that the general average be ascertained, and this was done. That up to this time no agreement or understanding had been made or had as to what the verdict should be, or how it should be reached. Afterwards, there was further discussion, and by mutual agreement the amount was settled at $1,750, which was less than the amount of the general average.

The cpurt did not err in refusing to receive the affidavits of the jurors filed in support of the motion. It is a rule well established that this cannot be permitted. It is settled for this State by the case of Merrimcm’s Appeal, 108 Mich. 462, where an opinion written by Mr. Justice Montgomery reviews the authorities. This case was followed in the case of Wixom v. Bixby, 127 Mich. 479, in an opinion written by the present Chief Justice. A long list of authorities will be found in the brief of plaintiff’s counsel in the present case. The affidavits filed by the plaintiffs indicate that during their deliberation the jurors ascertained the general average of their views relating to the subject of damages. This is a disquieting fact, for it suggests the suspicion of an unlawful verdict, but the suspicion is not necessarily a just one. Many cases hold that the averaging of views, where there is no agreement to abide the result, should not invalidate the verdict. It is only when the record overcomes the presumption of proper methods that the verdict should be set aside. There is affirmative proof that this verdict was not a “quotient verdict,” notwithstanding the fact (which is proved if the affidavits of any of the jurors should be looked into upon the subject) that for one purpose or another the general average of views was ascertained. Under the authorities cited, we think that the learned circuit judge did not err in refusing to set aside the verdict on this ground.

Counsel for the defendant strenuously urge that this record and verdict show that the verdict could not possibly have been reached by proper methods. His argument on this proposition, briefly stated, is that, while there was clear proof of the amount paid him, there was no tangible and certain evidence that any definite amount was overcharged upon any bill or bills, and therefore there could have been no .lawful verdict reached by computation, and that is also shown by the amount of the verdict rendered, which, it is stated, could not be reached by any proper method of computation, and therefore must have been reached in some other way, involving guessing or compromise. If it be conceded that the jury must find the amount of overcharge upon each particular item of the bill of particulars, it does not follow that such amount must accord with the amount stated in the bill. If it might not exceed, it certainly might be less, than the amount claimed, and thus the verdict cannot be said to be an impossible one, legally, under the proof, unless it exceed the aggregate of the items of the bill. There was proof in the case tending to show, with a greater or less degree of accuracy, the lumber furnished on each bill, and thus indirectly to furnish a means of ascertaining (counsel say computing) the overcharge. In any or every instance the jury might find an overcharge less in amount than the item as stated in the bill. Furthermore, there was testimony by Toole that nearly every bill was raised, bnt he could not tell definitely how much in any case, but in some cases doubled, and in some it was less; that he thought in one bill each item was raised from four to fourteen pieces. It cannot be said that the proof is so uncertain that it fails to justify a verdict, without suggesting that if a man can get a sufficient degree of rascality into his methods, so as to make it difficult to say just how much he has defrauded in a particular instance or item, a jury cannot determine how much he has wronged his adversary, and he is to be relieved from accountability. The office of a bill of particulars is to reasonably apprise the defendant of the nature of the plaintiff’s claim. This one gave defendant , to understand that he was charged with padding the bills itemized therein, and any proof that showed this was to be considered, and justified the jury in determining the respective amounts, when it established a probability of such amount. Upon the whole, the record discloses a patient and painstaking trial upon the part of the trial court, in every way fair and free from error. While his review of the case upon the motion for new trial discloses disapproval of the method pursued by the jury, it appears to rest upon the lawyer’s appreciation of the danger to be apprehended from a departure from proper methods, rather than upon evidence that the same should overcome the presumption that the verdict was not affected thereby. In following the law in this matter, and determining that the invalidity alleged was not proved, we find no error.

The judgment is affirmed.

Carpenter; Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    PARKINSON v. PARKINSON.
    Probate Courts — Degree in Partition — Effect— Title Under Degree — Res Judicata.
    A decree of the probate court making partition among devisees, and deciding that one of them holds a life estate in the part allotted to her, acquiesced in by her, precludes her from thereafter asserting a different tenure.
    Appeal from Wayne; Frazer, J.
    Submitted February 15,1905.
    (Docket No. 158.)
    Decided March 28, 1905.
    Bill by Jane E. Parkinson against Charles A. Parkinson, Ida J. Parkinson, Norman Parkinson, and Edward A. Parkinson to construe the last will and testament of Alva Ewers, deceased, and to quiet title. From a decree for complainant, defendants Norman and Edward A. Parkinson appeal.
    Reversed, and bill dismissed.

      Miller, Smith, Alexander & Paddock, for complainant.

      Wilkinson, Post & Oxtoby, for appellants.
   Hooker, J.

Jane E. Parkinson filed the bill in this cause to settle the title to two city lots of which she is in possession and claims in fee, but which some of the defendants’ counsel insist that she holds as tenant for life with remainder in fee to all of the defendants. The land belonged to her father, who undertook to dispose of it by will. The complainant claims that this will was void, for the reason that its provisions unlawfully suspended the power of alienation, and that in consequence the lands descended in accordance with the statfite, whereby she took an aliquot part in fee instead of an estate for life, according to the terms of the will.

The will was dated February 6, 1851, and it provided that most of the testator’s real estate, including that in controversy here, should be-held by his widow in trust until October 17, 1864, and that upon that date a final division of the property should be made as follows, viz., one-third to the widow, Jane G. Ewers, for her natural life, and the other two-thirds to the testator’s three children, his two sons to receive their portions in fee simple, and the daughter, Jane E. Parkinson, the complainant, to take her share for life, with remainder to her heirs at law in fee simple. There was a further provision that the share of the widow should at her death be divided among the testator’s children, each of the sons taking one-third in fee, and the daughter one-third for life, with remainder to her heirs at law in fee simple.

It is inferable that the will was probated, and after October 17, 1864, the widow’s final account was allowed, and on December 10, 1864, the-probate court made a decree (see 3 Comp. Laws, §§ 9443, 9444) directing a distribution of the estate according to the terms of the will, and appointing commissioners to make partition, as follows:

“ Now, therefore, it is ordered, adjudged, and decreed by this court, the parties in open court assenting thereto, that partition and division of certain real estate hereinafter described, and of which the said Alvah Ewers died seised and possessed, be made among the parties entitled thereto, and that William B. Wesson, Levi Cook, and Winslow W. Wilcox, of the city of Detroit, be, and they are hereby, appointed commissioners to divide and make partition of all and several the real estate and premises of which the said Alvah Ewers died seised or was at his decease entitled, and that said commissioners in making division do set off and apart by a proper description to the said Jane G. Ewers, widow of said Alvah Ewers, the one-third part of all and several said real estate, to have and to hold the same during the term of her natural life; that said commissioners do divide and set off to said William C. Duncan, the grantee of said William Ewers, the one-third part of the balance of said real estate, less the sum of $1,513.43, so advanced to said William Ewers; and that said commissioners do proceed and set off to said Jane Parkinson, late Jane Ewers, and to Charles Ewers, the balance of said real estate not so set off to said Jane Gr. Ewers and William C. Duncan, grantee; and that said commissioners in making partition and division of said real estate do set off to said William C. Duncan and to said Jane Parkinson and Charles Ewers each their share and part of said real estate by metes and bounds, or such other description by which the same may be known and described, and that, as to such part of said real estate as shall be set off to said Jane Gr. Ewers, the parties entitled thereto have leave to apply on the death of said Jane Gr. Ewers for a partition thereof.”

The commissioners proceeded to partition the land, and certified and reported to the probate judge as follows:

“That they had allotted and assigned to Jane Parkinson (formerly Jane Ewers), wife of William- Parkinson, of Detroit, Michigan, and daughter of said Alvah Ewers, deceased, to hold to her as provided for under said last will and testament, for and during the term of her natural life, and after her death to her heirs at law, their heirs and assigns, forever, in severalty in fee, as and for her and their right and portion of the said lands and premises as the same was adjudged to her and them by said court under said last will and testament of said Alvah Ewers, deceased, being all the following described pieces or parcels of land situated in Detroit, Wayne county, Michigan, described as lot three, block ten, Governor & Judge’s plan.”

They certified further:

“ That they had allotted and assigned to Jane G. Ewers, of Detroit, Michigan, widow of said Alvah Ewers, deceased, one of the devisees under the last will and testament of said Alvah Ewers, deceased, to hold to her for and during the term of her natural life in severalty as and for her right and portion of the said lands and premises as the same was adjudged to her by said court under said last will and testament of said Alvah Ewers, deceased, certain other real estate, among which was lot No. three (3) of the Military Reserve on the north side of Larned street.”

This report was filed, and on June 16, 1865, was confirmed upon the filing of the following consent:

“In the Matter of the Estate of Alvah Ewers, Deceased. In the Court of Probate for the County of Wayne.
“The undersigned, Jane G. Ewers, widow, Jane Parkinson, late Jane Ewers, Charles Ewers, and William C. Duncan, grantee of William Ewers, distributees or devisees of said Alvah Ewers, hereby consent that the report of the partition of said estate made by Levi Cook, William B. Wesson, and Winslow W. Wilcox, commissioners, be ratified and confirmed as against us and that an order be made by the Court of Probate to that effect.
“ Signed this 16 June, 1865.
“Jane G. Ewers.
' “Charles Ewers.
“Jane Parkinson.
, “William C. Duncan,
“By D. C. Holbrook, His Attorney.”

Two of the defendants in the case are children of the •complainant, and the other two are children of her deceased son. All but one were of age when the suit was begun. He was 16 years of age, and appears by guardian a.d litem. The bill was taken as confessed by complainant’s children Charles and Ida. The other defendants answered. A decree was granted complainant, and they .Shave appealed.

Counsel agree that the will was void, and the principal, if not only, question of importance in the case, is whether the order of partition and complainant’s acquiescence preclude her from making claim to an estate in fee. The questions before us are not numerous. They are: First, Was the assignment and partition by probate court more than an adjudication of the right of the complainant to possession of a share of this land and a setting off of her share to her in severalty ? and, second, If it would not otherwise be more than that, did complainant’s consent to confirmation affect the question ?

At common law a writ of partition lay to separate the interests of copartners, and did not extend to voluntary cotenants who were not entitled to partition. During the reign of Henry VIII. the right to partition was extended, and made to apply to all tenancies in common. This statute is said to have recognized or provided for equitable jurisdiction in some cases, if it did not already exist. In the time of William IV. the writ of partition was abolished by statute, and chancery had exclusive jurisdiction thereafter. [21 Am. & Eng. Enc. Law (2d Ed.), 1143.] This allusion to the history of partition is only for the purpose of showing that we received with the common law the chancery jurisdiction in partition. If we received any other concurrent jurisdiction, it is practically obsolete in this State.

There can be no question but that, had a court of equity made the decree that we have before us, such decree would have settled, not only complainant’s right to possession, but also the extent of her title, and the character of her estate. ' Aside from any general power of this kind, our-statute confers the power to do so. See 3 Comp. Laws, §§ 11013-11102. We may confidently say that the general understanding and practice contemplates something' more than a mere dividing up of possessory rights, and it is not reasonable to suppose, as counsel contend, that the legislature had only that in view when it provided for partition by probate courts. Under the statute there must bean assignment of the property to be partitioned before there can be a partition. Campau v. Campau, 19 Mich. 116. The court could not leave it to commissioners to determine who should participate in the partition, or the aliquot parts which each should have. The court must determine who shall share, and what their respective shares are in the land, and the commissioners must recognize this-finding, and make partition according to it. We cannot think that it was the intention that, after all this is done, the matter should be left in a state of uncertainty as to the estate each had taken under the will, so that, to ascertain, some other court would be obliged to intervene. It is more, reasonable to think that it was intended to furnish to heirs,, devisees, etc., a ready means of ascertaining definitely their' interests in the ancestors’ land, and have a determination of what particular parcels should be set off to. them. That. the legislature has authority to do this cannot be doubted. See Robinson v. Fair, 128 U. S. 53. We cannot suppose that this jurisdiction was conferred merely as a convenient method of dividing premises held in common generally for the mere purpose of settling possessory rights, for it is not made to apply to all cases of cotenants. It is only where the subject is land belonging to an estate of which the court has jurisdiction that it can act. Authority to partition is ancillary to its jurisdiction to administer and distribute. When the proper case arises, it must determine who are the tenants in common in the property, and, if there is to be anything final about its decree, it must determine the rights and interests of such tenants as between themselves. When it does so, its decrees are as conclusive upon such parties as those of any other court. Thus, in the present case, the court must of necessity have ascertained from the will who were the devisees, and it is as apparent that it must also have ascertained their respective shares.-

The case of Robinson v. Fair, 128 U. S. 76, deals with some of these questions. It arose over a decree of a probate court in California. As in all such cases, the jurisdiction was statutory. The court distinguished between ‘ ‘ distribution ’’and “ partition, as follows:

“We lay aside, as not open to dispute, the proposition that there is a difference between distribution and partition. And we are satisfied that that difference was in the mind of the legislature when it passed the original probate act, as well as when the Code of Civil Procedure was adopted. As correctly observed by counsel, distribution neither gives a new title to property, nor transfers a distinct right in the estate of the deceased owner, but is simply declaratory as to the persons upon whom the law casts the succession, and the extent of their respective interests; while partition, in most, if not in all, of its aspects, is an adversary proceeding, in which a remedial right to the transfer of property is asserted, and resulting in a decree which, either ex proprio vigore or as executed, accomplishes such transfer. * * *
“In a large number of the States, as the citations by counsel of statutes and decisions show, probate courts were and are invested with power to make partition, among heirs or devisees, of estates coming within their cognizance for settlement and distribution. * * * Such legislation, we suppose, has its origin in the belief that it is convenient, if not desirable, for all concerned in the estate of a decedent, that the same court which supervises the final settlement of the accounts of a personal representative, and ascertains and declares the interests of heirs in such estate as may remain after the demands of creditors are satisfied, should have the power to make partition. We are not prepared to say that this belief is not well grounded. The connection between the administration, settlement, distribution, and partition of an estate is such that the power to make partition may be justly regarded as ancillary to the power to distribute such estate, and therefore not alien to the probate system as it has long existed and now exists in many States.”

This work would be but half done were not the decree of the probate court to determine the estate which the heirs or devisees should take. Counsel do not point out any substantial differences between our present statute, and that in force when the partition was made. Section 2, chap. 226, 3 How. Stat. (3 Comp. Laws, § 9443), requires the assignment (by the court) of the “ residue of the estate to such persons as are by law entitled to it.” While perhaps this might be said to apply to personalty only if it stood alone, section 5 provides:

“When the estate, real or personal, assigned to two or more heirs, devisees, or legatees, shall be in common and undivided, and the respective shares shall not be separated and distinguished, * * * partition and distribution may be made by three discreet and disinterested persons to be appointed commissioners for that purpose by the probate court,” etc.

And section 18 provides:

“The partition, when finally confirmed and established, shall be conclusive on all the heirs and devisees and all persons claiming under them, and upon all persons interested.”

If the assignment provided by section 2, above quoted, may be said to be not conclusive of rights, but is merely declaratory, as suggested in Robinson v. Fair (which we do not decide), nevertheless it cannot be doubted that par-lies to proceedings for partition in equity would be hound by a decision confirmatory of such assignment, and partitioning the land accordingly. The respective estates would be conclusively determined thereby. Instead of ■proceeding in chancery, the parties may ask partition by the probate court in such cases, and in our opinion its determination of the estate taken is as final as though a court of equity had been asked to intervene. The probate court may construe wills for certain purposes. It is necessary for it to do so in distributing estates. Glover v. Reid, 80 Mich. 232; Knapp v. Knapp, 95 Mich. 478; Patterson v. Stewart, 38 Mich. 402; Kelly v. Reynolds, 39 Mich. 464; Langrick v. Gospel, 48 Mich. 185; Byrne v. Hume, 84 Mich. 185; Dean v. Mumford, 102 Mich. 510.

Counsel for the defendants cite the case of Haddon v. Hemingway, 39 Mich. 617, as an authority sustaining the claim that partition does not settle the title. Under the will of the ancestor of Axford, the land was partitioned, ■and the premises in controversy were set off to him. Although thus partitioned, it was claimed that the will gave the executors and trustees the authority to sell them, and they did so,'to Haddon, who took possession. Axford’s wife secured a decree for alimony, and levied execution on the land, and sold it at execution sale to Hemingway, whereupon Haddon filed a bill to restrain the completion of the sale and to quiet his title. Defendants claimed the land to have belonged to Axford in fee. Complainant claimed that the executors held it from the ancestor under an active trust, and had authority to sell it. The question ■did not arise between Axford and his coheirs, but between him and his trustees. The assignment was of certain land, but the title which the court was dealing with was limited by the will, and nothing indicates that any attempt was made to decide between the executors and Ax-ford. The land was partitioned while the title, such as it was, remained unquestioned. On the other hand, the" case of Persinger v. Jubb, 52 Mich. 304, is not in point. In that case partition was made between children of the deceased. Afterwards one contested the validity of the partition in an ejectment case upon the ground that one of the supposed heirs was illegitimate, and therefore not entitled to a share of the property. The court held that the question was set at rest in the partition proceedings. This falls short of the question that the complainant’s, counsel raise here.

We have been cited to no Michigan case that reaches! this question, but after availing ourselves of the light shed by the briefs of counsel, and such authorities as we have been able to find, we are of the opinion that the decree in the case, which clearly decides the tenure of the complainant, is final, and her contention cannot prevail, although had she raised the question on the proceedings for partition, and appealed from the decree of the probate court, as she might have done under the statute (3 Comp. Laws, § 9458), it is probable that she would have prevailed. We are constrained to reverse the decree of the circuit court in chancery. A decree will be entered in this court dismissing complainant’s bill, with costs of both courts.

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


text:
    HAYWARD v. SCHOOL DISTRICT NO. 9 OF THE TOWNSHIP OF HOPE.
    1. Appeal and Error — Questions Reviewable.
    A contention not raised below canot be relied upon as a ground of reversal.
    2. Trespass — Right to Maintain — Party Out op Possession.
    One not in possession of the property cannot maintain trespass quare clausum fregit.
    3. Landlord and Tenant — Possession—Ouster op Tenant.
    The act of a landlord, in placing a lock on the door of a building in lawful possession of his tenant, is a mere invasion of the tenant’s rights, and does not place the landlord in possession.
    4. Same — Right to Remove Buildings — Termination op Tenancy.
    The tenant owns buildings erected by him on leased land in furtherance of the purpose for which the premises were . leased, and may remove them during the tenancy, or, if the tenancy terminate on a contingency, within a reasonable time after it terminates.
    5. School Districts — Leased Premises — Removal op Sohoolhouse.
    Where a school district asserted its right to remove a schoolhouse on leased premises within five days after closing school in such house, and before it had ceased exercising a right of possession over the same, the subsequent removal of the building within a reasonable time thereafter was within its rights, and the circumstances did not warrant any inference of abandonment "by the school district of its right to the schoolhouse.
    6. Same — Statute—Ownership op Schoolhouse — Reservation.
    Under section 4673, 2 Comp. Laws, providing that no district shall build a frame schoolhouse on any site for which it has not a title in fee, or a lease for 50 years, without securing the privilege of removing the schoolhouse, the owner of premises, leased for 50 years for school purposes, is not entitled to the schoolhouse, after the termination of the lease, merely because of the absence of an express reservation of title in the school district.

      Error to Barry; Smith, J.
    Submitted February 16, 1905.
    (Docket No. 159.)
    Decided March 28, 1905.
    Trespass quare clausum fregit by Thomas Hayward against school district No. 9 of the township of Hope. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Colgrove & Potter, for appellant.

      Fred W. Walker (Thomas Sullivan, of counsel), for appellee.
   Carpenter, J.

Plaintiff brings this suit, which is an action of trespass quare clausum fregit, to recover the value of a schoolhouse which he alleges defendant removed from his land. The schoolhouse was erected on the land in question in 1868. The land, which was subsequently transferred to plaintiff, then belonged to plaintiff’s father. During the construction of the building, defendant and plaintiff’s father orally assented that their rights should be determined by certain writing. By this writing defendant, for a consideration therein named, leased the land for 50 years, provided “that at any time that the parties of the second part [defendant] shall discontinue the district school on said land, the same shall fall in full possession of the parties of the first part” (plaintiff’s ancestor and grantor). In the summer of 1902 defendant built a new-schoolhouse on a different site. It ceased holding school in the schoolhouse in question December 24th. 'December 29th its directors gave notice of a special meeting of the voters to be held in this old schoolhouse “ on Monday evening, January 5th, at ? o’clock p. m., for the purpose of disposing of the schoolhouse on the old site.” At this meeting plaintiff appeared, and insisted that he owned the schoolhouse. This claim was denied by the others present, and the district then sold the building to the highest bidder for $40 (the sale to be null and void if there was no right to sell), with the proviso “that the district hold the schoolhouse for twenty days from the date of sale.” Within this 20 days defendant moved the building. Later this suit was brought. The issue was submitted to a jury, who rendered a verdict of $300 in plaintiff’s favor.

Defendant insists that a verdict should have been directed in its favor on various grounds, of which we notice these two: (1) Plaintiff was not in possession of the property at the time the alleged trespass was committed. ^ (2) Defendant had a right to remove the building.

Plaintiff insists that defendant in the court below did not contend that it had a right to remove the building. If so, that contention cannot now be relied upon as a ground of reversal. We are bound, however — and this will more clearly appear in our opinion — to consider defendant’s right of removal in determining whether plaintiff was or was not in possession.

Was plaintiff in possession of the property at the time the schoolhouse was removed ? If he was not, he cannot maintain this action. See Carpenter v. Smith, 40 Mich. 639. Defendant never formally yielded possession to plaintiff. It never notified plaintiff that he might have possession. The only possession which plaintiff ever, took was to put a' lock on the schoolhouse door. It is obvious that this did not put the building in plaintiff’s possession if defendant’s possessory rights continued. If defendant’s possessory rights continued, plaintiff’s action was only an invasion of those rights. Those possessory rights did continue if defendant had a right to remove the building. Defendant’s right to remove the building at the time of the alleged trespass affords, therefore, a complete answer to plaintiff’s claim that he was in possession.

Plaintiff insists that the rights of the parties shall be determined by the writing' to which they verbally assented. No unfairness results to plaintiff therefore if we so determine them. This writing does not in express terms give defendant the right to remove thé schoolhouse. Neither does it provide that the schoolhouse shall be the property of the owner of the land. If the rights of the parties are determined by common-law principles, the schoolhouse was defendant’s property, for it is settled in this State that the tenant owns buildings erected by him on leased land, “and in furtherance of the purpose for which the premises were leased.” See Kerr v. Kingsbury, 39 Mich. 150. See, also, Osborn v. Potter, 101 Mich. 300; Van Ness v. Pacard, 2 Pet. (U. S.) 137. Accordingly, the tenant may remove such buildings during his tenancy, or, if his tenancy terminate on a contingency, within a reasonable time after it terminates. See Martin v. Roe, 7 El. & Bl. 237; Northern Cent. R. Co. v. Canton Co., 30 Md. 347; 2 Taylor on Landlord & Tenant (9th Ed.), § 552. If, therefore, as contended by plaintiff, the lease terminated when school closed on the 24th of December, defendant had a reasonable time thereafter to remove the schoolhouse. Defendant’s right of removal was asserted within five days. It was asserted before it had ceased to exercise the right of possession over the property, and the building was itself removed within a reasonable time thereafter. Under these circumstances, defendant acted within its rights. See Antoni v. Belknap, 102 Mass. 193. Neither do these circumstances warrant, as plaintiff contends, any inference of abandonment. It follows, therefore, that, if the rights of the parties are governed by the common law, defendant had a right to remove the building, plaintiff was not in possession at the time of the alleged trespass, and a verdict should have been directed in defendant’s favor.

Plaintiff insists, however, that the common-law principles are rendered inapplicable to this case by reason of the following portion of section 4673, 2 Comp. Laws, viz.:

“Nor shall any district build a frame schoolhouse on any site for which they have not a title in fee or a lease for fifty years without securing the privilege of removing the said schoolhouse when lawfully directed so to do by the qualified voters of the district at any annual or special meeting when lawfully convened.”

It is obvious that the purpose of this statute was to se■cure to the school district the right of removing at any time a frame schoolhouse erected ón a site leased for less than 50 years. This statute has no application to the lease under consideration (which, from the standpoint of plaintiff, adopted by us, is a lease for 50 years) unless it indicates a legislative intent that, in the absence of an express reservation of title, schoolhouses on leased land shall belong to the landowner. No such intent is expressed. We cannot infer that intent without deciding that the legislature, by enacting a statute to enlarge the rights of the public in a schoolhouse erected on leased land, intended to diminish those rights and enlarge the opposing rights of the landowner. We cannot so decide. We conclude, therefore, that the statute has no application, and that the rights of the parties are to be determined by the principles of the common law. So determined, as heretofore indicated, defendant had a right to’ have the jury instructed to render a verdict in its favor.

It follows that the judgment of the lower court should be reversed, with costs of both courts. As plaintiff cannot recover, no new trial will be granted.

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