text:
    CLIFFORD v. CATHOLIC MUTUAL BENEFIT ASS’N.
    1. Insurance — Life Insurance — Beneficial Associations — Forfeiture — Nonpayment of Dues.
    A mutual benefit association may not declare, a forfeiture of tbe policy of insurance where it has in its hands money belonging to the policyholder sufficient to pay and discharge the dues and assessments when due and payable.
    2. Same — Acquiescence—Estoppel—Forfeiture.
    Nor may it invoke the doctrine of acquiescence and estoppel to work a forfeiture of the policy of insurance where it has in its hands money it has unlawfully exacted sufficient to make all payments due upon the policy, even though considerable time has elapsed" since the unlawful exaction.
    3. Trial — Instructions—Charge as Whole.
    In an action on a mutual benefit policy, claimed by the defendant association to be forfeited for nonpayment of dues, the use by the trial judge of the word “abhor,” in explaining to the jury that forfeitures are not favored either at law or in equity, while unfortunate, held, not reversible error where the charge as a whole fully protected the rights of defendant.
    Error to Wayne; Hunt (Ormond F.), J.
    Submitted pctober 31, 1919.
    (Docket No. 115.)
    Decided December 23, 1919.
    Assumpsit by Josephine Clifford against the Catholic Mutual Benefit Association on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Wm. Henry Gallagher and Francis T. McGann, for appellee.
   Fellows, J.

For nearly 30 years Thomas B. Clifford was a member of branch No. 1 and held a policy of insurance in the sum of $2,000, issued by the defendant, Catholic Mutual Benefit Association. His wife, Josephine Clifford, the plaintiff, was named as beneficiary. He died December 13, 1916. This action is brought by her to recover on such policy. The defense is that Mr. Clifford was not a member in good standing at the time of his death in that he had failed to pay an assessment of $2.50 and dues of 30 cents, both of which were due and payable during the month of November, and for failure to pay which, it is claimed, he automatically stood suspended. It appears from the testimony of the plaintiff that in the main the payments were made by her and she testifies to a number of occasions covering a period of years when she was required by the financial secretary to pay, and did pay, sums in excess of the lawful assessments, dues, and fines; she testifies that she was told she would have to pay the amounts demanded or get out. The items of overpayment testified to by her aggregate $5.05. It is not claimed that the financial secretary was not the agent of defendant or that he was not the proper party to whom payment should be made. These overpayments are denied by the officers of the association, but an auditor called as a witness by defendant, after auditing its books, testifies ■to an overpayment of dues during a period of 11 years of $1.20. Summarized, there was testimony from which the jury would be authorized in concluding that plaintiff had overpaid the sum of $5.05 of which $1.20 had been applied to and was an overpayment on the dues of the local branch. This would leave in the hands of the defendant $3.85 belonging to Mr. Clifford which had not been appropriated to the payment of dues. The plaintiff’s right to go to the jury and to recover was sustained in the trial court on the authority of Albrecht v. Annuity Ass’n, 129 Mich. 444, and a verdict rendered and judgment had for the amount of the policy with interest. The errors assigned and principally argued relate to the refusal of the court to direct a verdict. Error is also assigned and argued on a portion of the charge. No other assignments of error are urged in defendant’s brief.

We do not think the question of payment to an unauthorized agent is before us upon this record. While it is undisputed that the financial secretary, Mr. Stevenson, was the proper officer to whom payment should be made, and that one of the payments was made to a Mr. O’Rourke, the recording secretary, still the testimony discloses that Mr. Stevenson was the one who fixed the amount to be paid, plaintiff was directed to make the payment to the recording secretary with the statement that it would be turned over to Mr. Stevenson, and when she afterwards talked with Mr. Stevenson about it, he did not deny receiving the money but claimed that she owed it.

Nor have we the case before us, at least not undisputedly so that we could dispose of it as a matter of law, of overpayments of dues, to a subordinate lodge, which are sought to be applied to the extinguishment of assessments levied by, and payment to, the supreme body. If Mrs. Clifford had made overpayments of, $5.05 to defendant’s agent, and but $1.20 had been applied, and improperly applied, to the payment of dues, manifestly she had overpaid the sum of $3.85, which was still in the hands of defendant’s agent.

While counsel for defendant lays greater stress on the question which we shall presently discuss, an examination of the authorities cited by him would indicate a claim that the rule laid down by this court in Albrecht v. Annuity Ass’n, supra,, ought not to be followed in the instant case and that the principle involved in that case should not be extended. The contention of the plaintiff is that defendant, a mutual benefit association, may not declare a forfeiture of the policy of insurance where it has in its hands money belonging to the policy holder sufficient to pay and discharge the dues and assessments when due and payable. We think the contention of plaintiff’s counsel finds support in the Albrecht Case, and that it is in consonance with the great weight of authority. See Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 Pa. St. 15; Elliott v. Grand Lodge, 2 Kan. App. 430 (42 Pac. 1009); Fraternal Aid Ass’n v. Powers, 67 Kan. 420 (73 Pac. 65); Knight v. Supreme Council, 6 N. Y. Supp. 427; Brady v. Benevolent Ass’n, 14 N. Y. Supp. 272; Supreme Lodge O. M. P. v. Meister, 204 Ill. 527 (68 N. E. 454); Knights Templars Indemnity Co. v. Vail, 206 Ill. 404 (68 N. E. 1103); Price v. Brotherhood of R. R. Trainmen, 116 Minn. 275 (133 N. W. 793); Columbian Relief Fund Ass’n v. Hopper, 24 Ind. App. 169 (53 N. E. 1051); Rambousek v. Supreme Council, 133 Iowa, 375 (106 N. W. 947); Clark v. Traveling Men’s Ass’n, 156 Iowa, 201 (135 N. W. 1114, 42 L. R. A. [N. S.] 631); Supreme Council C. K. A. v. Fenwick, 169 Ky. 269 (183 S. W. 906); Supreme Council C. K. A. v. Wathen, 179 Ky. 64 (200 S. W. 320); Niblack on Accident Insurance & Benefit Societies (2d Ed.), § 271; 14 R. C. L. p. 965.

The claimed overpayments were small amounts and extended over a considerable number of years. Plaintiff testifies that she repeatedly importuned the financial secretary to put them on her book; the book was used in place of a receipt and showed the amount credited for both dues and assessments. If is the claim of defendant that there was an acquiescence by plaintiff, and that she is now estopped from insisting in this action that such payments were overcharges, overpayments that should at this late date be applied to the payment of the November dues and assessments. It is pointed out that the dues and assessments were payable monthly, and that after the entry had been made in her book it was returned to her and she could see the credits made, and that, if she claimed or thought she was entitled to further credits, she should not have permitted the matter to stand for a period of years; defendant’s counsel cites cases dealing with an account stated, and cases analogous to those dealing with an account stated; he also cites insurance cases from other jurisdictions which by analogy are thought to be applicable here. But we do not think these cases are controlling in the instant case. While there is some language in the prevailing opinion in Ancient Order United Workmen v. Moore, 1 Ky. L. R. 93, giving support to defendant's claim, a very recent speaking of that court in Supreme Council C. K. A. v. Fenwick, supra, in unmistakable language denies the application of the doctrine of estoppel to a case quite similar to the one in hand. In that case an invalid amendment had been made to the by-laws of the association increasing the assessments. The member paid them for a number of years. Upon his death it was insisted that by the collection of the illegal assessments the association had in its hands sufficient funds to discharge the amount legally collectible. On behalf of the company it was insisted that the doctrine of acquiescence and estoppel should be applied. It was said by the court;

“But it is insisted that the defense of estoppel is available in this case because the insured acquiesced in the increased assessments and paid them for a number of years. On this point, however, the authorities do not differ, and the rule is well established that the mere fact that the holder of a certificate of a benefit association pays illegal assessments levied against his certificate in violation of his contract, rather than take the possible chances of having his certificate forfeited, does not estop him or his beneficiary from questioning the legality of subsequent similar assessments (citing authorities). The basis of such holding is that the certificate holder, by making such payments, cannot be said to have acted fraudulently or willfully to have done anything to mislead others to their prejudice.”

In Clark v. Traveling Men’s Ass’n, supra, there had been an illegal exaction by the association and it was sought by the defendant to apply the doctrine of acquiescence; this the court refused to do, saying:

“There can be no acquiescence without full knowledge ; nor will the doctrine be applied in aid of a forfeiture where an illegal exaction has been made'.”

See, also, Benjamin v. Life Ass’n, 146 Cal. 34, 49 (79 Pac. 517); Supreme Council C. K. A. v. Logsdon, 183 Ind. 183 (108 N. E. 587); Covenant Mutual Life Ass’n v. Tuttle, 87 Ill. App. 309; Duggans v. Life Ass’n, 87 Ill. App. 415; Fort v. Legion of Honor, 146 Iowa, 183 (123 N. W. 224).

We conclude that defendant may not invoke the doctrine of acquiescence and estoppel to work a forfeiture of this policy of insurance where it has in its hands money it has unlawfully exacted sufficient to make all payments due upon the policy, even though considerable time has elapsed since the unlawful exaction. The trial judge did not err in refusing defendant’s motion for a directed verdict.

Error is assigned on a portion of the charge in which the trial judge used the expression, “I can in a general way say the law does abhor forfeiture,” particular stress being laid on the use of the word “abhor.” While the trial judge could possibly have found a less objectionable word to express the thought that forfeitures are not favored either at law or in equity (Lyon v. Insurance Co., 55 Mich. 141), when we take the charge as a whole, as we must do, the rights of the defendant were fully protected and the jury was told on more than one occasion that plaintiff could not recover if the insured was in default, that he was bound by the laws of the order and so was his beneficiary. He said:

“I charge you as a matter of law that the deceased, Thomas Clifford, was bound by the laws, as is also his beneficiary, the plaintiff in this case, and that if you find he was suspended at the time of his death, your verdict should be no cause of action.”

Later in his charge, after telling the jury that they must not allow sympathy to influence their verdict, he again charged the jury in the following language:

*<You are to hold the plaintiff, Thomas Clifford, bound by all the rules and by-laws of this order.
“You are also to say whether or not he was in default and was or was not in Suspension at the time of his death by reason of his failure to conform to and comply with all the laws, rules and regulations of the order. That is a question of fact for you. If he was in suspension at that time, the plaintiff beneficiary in this case cannot recover.”

The charge as a whole was quite favorable to defendant.

We find no grounds for reversal in the errors discussed, and therefore affirm the judgment.

Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Sharpe, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    MICHAELS v. PINTEN.
    1. Trial — Instructions—Charge as Whole.
    In an action to recover a balance claimed to be due on a building contract, where the amount of the contract was in dispute, it was not error for the trial court to use the expression “was in the neighborhood of $5,100,” in charging the jury in reference thereto, it appearing from a reading of the whole sentence that the court was stating the claims of the respective parties and clearly presenting the issue to the jury.
    2. Same — Instructions—Requests to Charge.
    In such action, where the fact that the plaintiff had had years of experience as a contractor and builder was a circumstance already before the jury, the trial court was not in error in refusing to call the attention of the jury especially to it.
    3. Same — Rebuttal—Evidence—Admissibility.
    Where plaintiff had testified, in support of his theory that the contract price was greater than defendant claimed, as to the cost and expense of erecting such a building, testimony of defendant and his wife, in rebuttal, that the building was leaky, was admissible on the theory that defective work did not cost as much as careful and satisfactory work.
    4. Evidence — Contracts—Gratuitous Work — Building Contract.
    In an action to recover a balance claimed to be due on a building contract, where the amount of the contract was in dispute, testimony as to the amount of work and labor furnished gratuitously by the plaintiff was properly rejected, being irrelevant and immaterial to the issue.
    5. New Trial — Newly-Discovered Evidence — Known at Time of Trial.
    It was not error to refuse a new trial on the ground of newly-discovered evidence* where such evidence was the fact that defendant had applied to a building and loan association for a loan, and, upon the record, was known to plaintiff at the time of the trial.

      6. Evidence — Judicial Notice.
    The Supreme Court will take judicial notice of the fact that the trial took place in the immediate vicinity of the home office of a building and loan association.
    7. New Trial — Nor Favored on Ground op Newly-Discovered Evidence.
    Motions for new trials upon the ground of newly-discovered evidence are not favored by the courts.
    8. Same — Impeachment—Lack of Diligence.
    Where the most that can he said for newly-discovered evidence is that it might have tended to impeach defendant in some particulars, but there was lack of due diligence on the part of plaintiff, a new trial on this ground was properly denied.
    9. Same — Overwhelming Weight op Evidence.
    Verdict held, not to be against the overwhelming weight of the evidence.
    10. Appeal and Error. — Assignments op Error. '
    Where the fact that plaintiff, by undisputed evidence, was entitled, to a verdict for the sum of $28.76 was overlooked by both counsel and court until raised by plaintiff’s counsel on motion for new trial, a judgment for defendant will not for that reason he set aside and a new trial granted; there having been no assignment of error upon the subject.
    Error to Houghton; O’Brien (Patrick H.), J.
    Submitted October 21, 1919.
    (Docket No. 88.)
    Decided December 23, 1919.
    Assumpsit by John J. Michaels against Philip J. Pinten for a balance due upon a building contract. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      J. F. Hambitzer, for appellant.

      B. H. T. Burritt, for appellee.
   Stone, J.

The plaintiff is, and has been for about 20 years, a contractor and builder in Houghton county. This suit was brought to recover a balance claimed to be due him from the defendant upon a building contract made in June, 1916. Plaintiff’s claim is concisely stated in the declaration to be that on or about June 14, 1916, he made the defendant a bid to excavate for a cellar and basement, and to furnish the labor and material for erecting a dwelling house and painting and decorating the same for $5,360.37, which said bid was made in writing and delivered to defendant; that after the receipt of said bid, defendant directed the plaintiff to proceed with the erection of the building according to the plans and specifications; that said bid did not include heating and plumbing; and that on or about June 16, 1916, defendant requested the plaintiff to secure an estimate and make a bid for furnishing materials and labor for heating and plumbing said dwelling house; that plaintiff at once secured an estimate of the cost for heating and plumbing from an experienced and competent plumber, which estimate was in the sum of $1,068, which was submitted to the defendant, and the plaintiff was directed to proceed with the work, and furnish materials for said heating and plumbing, which made the contract price for work and labor and materials, including plumbing and heating, $6,428.37; that after said bid was accepted, certain modifications and changes were made, which were mutually agreed to by the parties, from time to time during the progress of the erection of said building, which the defendant agreed to pay for as extras, as shown by the bill of particulars annexed to and made a part of the declaration; that the amount of the extras, including the plaintiff’s services, amounted to $1,428.76; that plaintiff furnished the labor and materials for all of the above matters, including said extras, for which defendant agreed to pay the plaintiff $7,857.13; that after the plaintiff had completed said dwelling house in accordance with said modified plans, including said extras, the defendant accepted and occupied the said dwelling, and has ever since occupied the same as a home; that defendant has paid to the plaintiff on account of said work and labor, and for furnishing said materials, as aforesaid, $6,500, leaving a balance due the plaintiff of $1,357.18, with interest from the date of such occupancy.

The plea was the general issue with notice of settlement and payment in full. Upon the trial there was no question that the plans agreed upon by the parties were known as the “Radford plans,” with certain modifications, although certain plans called the “Maas plans” were discussed. A sharp, issue of fact arose as to the price agreed upon. The plaintiff was not able to produce his written bid, it being claimed that the same had been mislaid or lost, and defendant denied that he ever had one. This issue, which , was a vital one, was clearly submitted to the jury by the trial court. After stating the plaintiff’s claim to be as substantially set forth in the declaration, the court said:

“On the other hand, the defendant denies that the total amount of the bid or agreed price of putting up the house which was built by the plaintiff for the defendant, was the sum of $6,428.37, as claimed by the plaintiff, but insists that he, the defendant, notified the plaintiff, time and time again, that he did not want to put in excess of $5,000 into a house, and that he could not afford to do. it, and that the Maas plans were submitted to him, but that his wife wouldn’t have anything to do with them, and did not want them, and finally the Radford plans were gone over by the plaintiff, at the request of the defendant, and certain alterations or deductions were made from the Radford plans which brought the total down to $5,100 to complete the building according to those plans, and that that sum was to include plumbing and heating; and it is the claim of the defendant that one evening the defendant and his wife, at a meeting in the plaintiff’s office, talked over the Radford plans, as finally altered to conform with, the sum of $5,100, and that the plaintiff then agreed that he would erect such a dwelling for the sum of $5,100 all complete.
“So, gentlemen, the real issue that you are called upon to determine in this case is, What was the price agreed upon to erect this dwelling? Was it the sum of $6,428.37 as claimed by the plaintiff, or was it the sum of $5,100, as claimed by the defendant? There is no dispute as to the charges for extras amounting to the sum of $1,428.76. Neither is there any dispute in regard to the amounts of payments made by the defendant, amounting to $6,500. The only question for you to determine is, What was the amount of the sum to be paid by the defendant for the building complete, according to the Radford plans?”

These figures were reiterated in the charge, and finally the court said:

“If you find that the bid for the Radford plans, as modified, was $6,428.37, including plumbing and heating, and there being no dispute about the extras, your verdict will be in favor of the plaintiff and against the defendant for the sum of $7,857.13, less $6,500 paid by defendant, and add interest at five per cent. $73.51, making a total due the plaintiff of $1,430.64. On the other hand, if you find that the bid was not for the sum of $6,428.37, but was in the neighborhood of $5,~ 100 as claimed by the defendant, then your verdict will be no cause of action, because if that was the contract, that is, the sum of $5,100, the plaintiff has been fully paid, both for the contract price and the extras.”

An extended discussion of the evidence would serve no good purpose. It is sufficient to say that there ■was here a clear cut question of fact, making a sharp issue, and it was submitted to the jury in a clear charge.

All of plaintiffs requests to charge were given except the 8th, which was as follows:

“In determining the question as to the amount of the bid made by the plaintiff, for building according to the Radford plans, you may take into consideration the years of experience of Mr. Michaels as a contractor, and the actual cost of erecting and completing said building.”

The jury were instructed by the court that they might consider a paper called the “bidding sheet,” as bearing upon the probabilities of the claim of the plaintiff and his bookkeeper, provided that they found this bidding sheet was made at the time they were figuring on the price which the dwelling house was to cost the defendant. The jury were also charged:

“You also have a right to determine the actual cost of the building as bearing upon the probabilities regarding the bid made”;

• — and two witnesses testified as to the actual cost of erecting and completing such a building; but the jury were instructed that they would consider this evidence simply in determining the probabilities of the amount actually agreed upon between the parties, because it was the amount which was actually agreed upon which was to be determined by the'verdict.

Upon the examination of defendant’s wife she was permitted to testify as to the leaky condition of the building and the damage done thereby to the interior. She testified:

“Well, we moved into the house in July, and I think, about September, we had a terrible rainstorm from the east, and I called Mr. Michaels. The fireplace leaked around the chimney and I think about ten windows leaked. He said, ‘A driving rain like that, it would not happen again.’ And these last couple of months we have had quite a little rain and it has been coming in from several places and some of the ceilings have been leaking. His man came to see them and fixed the fireplace and a carpenter came and fixed the windows.”

This testimony was objected to by plaintiff’s counsel because there was no claim of recoupment in the pleadings. The court permitted the evidence as tending to show the real cost of erecting the building, holding that it did not cost as much to do defective work as it would to do careful and satisfactory work. Upon the trial the plaintiff offered testimony as to the amount of work and labor furnished gratuitously by the plaintiff for the defendant in the construction and completion of the building. This being objected to as incompetent and irrelevant, the objection was sustained, there being no claim made for such gratuitous work. The jury returned a verdict of no cause of action, and a judgment for the defendant, with costs, followed:

There was a motion for a new trial entered by the plaintiff, based upon the following reasons:

(1) That new testimony had been discovered since the trial of the case, which was not known to the plaintiff or his attorney to be in existence before, or at the time of said trial, which said newly-discovered evidence was in the form of an application for a loan of $2,500 on the house which was the subject of litigation in said suit, which application was signed by the defendant on June 21, 1917, and delivered to the Detroit & Northern Building & Loan Association at its office in Hancock, Michigan, wherein it was claimed material facts were stated by the defendant which impeached his testimony and the testimony of his wife. Those are stated in detail.

(2) That the court erred in not giving plaintiff’s 8th request to charge.

(8) Error in permitting defendant’s witness to testify, after objection, regarding the leaky condition of the house.

(4) That the court erred in not permitting the plaintiff and his witnesses to testify as to the amount of labor and materials furnished the defendant gratuitously, which they claimed to be upwards of $400 in amount.

(5) That the verdict was against the weight of the evidence.

The motion for a new trial was denied by the trial court, and its reasons therefor were filed. As to the first point urged the circuit judge said:

“The testimony is not newly-discovered, because upon the cross-examination of the defendant, his attention was called to the fact that he had made an application to the building and loan, and there was plenty of opportunity upon the trial to have brought in the application if it were deemed material. In the opinion of the court, the new testimony would have no tendency to alter the verdict given at the trial. While parts of the application may be considered as corroborating the plaintiff’s theory, there are other parts that tend to corroborate the defendant’s theory, and on the whole, it would be a question whether it would have any weight one way or the other with the jury.”

2. Answering the second point urged in the motion, being the refusal to give the 8th request to charge, the trial court said:

“I have not a copy of the charge before me, but I am of the opinion that so far as the principle involved in the charge is concerned, it was given in the general charge of the court. In any event, this request would have the effect of calling the attention of the jury to the testimony of the particular witnesses in an argumentative way, and for that reason was properly refused. Taking the charge as a whole, I do not think that there was any error in refusing request No.’8.”

3. In answering the third point of the motion the learned circuit judge said:

“The plaintiff was permitted to offer in evidence, and did offer in evidence testimony of estimates made as to the cost of construction of a building such as the dwelling erected for the defendant, and was also permitted to display his books of account and all of the data that would assist the jury in forming an estimate of the cost of said dwelling; and in rebuttal of that testimony the defendant was permitted to introduce evidence showing that there were certain defects in the construction. I take it that the testimony offered by the defendant was material in showing the real cost of the building. It does not cost as much to do defective work as it does to do careful and satisfactory work, and the testimony was offered in support of both propositions, the plaintiff having been given full leeway to introduce anything that he had which would tend to establish his claim that the building cost as much as he claimed the bargain was. Taking the case as a whole, I can see no error in the admission of that testimony from the defendant.”

4. The trial judge found upon the fourth point in the motion as follows:

"The plaintiff was not permitted to testify as to the amount of labor and materials which he furnished gratuitously. This testimony would be immaterial to show what the building actually cost, because the labor and materials furnished gratuitously were not considered in the estimates made by the plaintiff, and, therefore, could not in any sense be said to support his theory of the case. Neither did it have any tendency to refute the claim made by the defendant as to the defects in such material and parts of the work as were claimed to be defective. I am of the opinion, therefore, that the court did not err in excluding the proffered testimony as to labor and material gratuitously furnished.”

5. As to whether the verdict was contrary to the great weight of the evidence, the trial judge met this proposition by saying that, while the plaintiff made a strong case in favor of his contention, in his opinion, the defendant and his wife were equally honest in their contention as to what they claimed the bargain was, and that it could not be said that the verdict was contrary to the great weight of the evidence.

The point is sought to be made by plaintiff’s counsel that in any view of the evidence the plaintiff was entitled to a verdict for $28.76. Not only was no such point made upon the trial of the case, nor in the motion for a new trial, but there is no assignment of error reaching this, question. Upon that subject, however, the trial judge said:

“There has been brought to my attention for the first time at the hearing on the motion for a new trial, that in any view of the evidence, the plaintiff would be entitled to the sum of twenty-eight dollars and some' odd cents. There was no such claim made at the trial.] The issue was a clear cut one for an amount claimed by the plaintiff on the one hand, and the defendant claiming that he had fully paid, or overpaid the plaintiff on the other, the real issue depending upon what was the exact amount of the original contract. Under these circumstances, I feel as though it would be an injustice to reopen this case, even though it should now appear upon an exact examination of the question that the plaintiff would have been actually entitled to twenty-eight dollars under any view of the testimony. If that were the case, such a theory should have been presented at the trial, and should not be raised for the first time on a motion for a new trial.”

Exception was duly taken to the order overruling the motion for a new trial. The plaintiff has brought the case into this court upon writ of error, and the errors assigned cover the same questions that were raised in the motion for a new trial; and the additional one that the court erred in overruling the motion for a new trial.

1. The first assignment of error criticizes that portion of the charge, set out by us, where the court uses the expression: “was in the neighborhood of fifty-one hundred dollars.” Fairness to the trial court should at least have led counsel to give the whole sentence in which the expression was used. That appears in that portion of the charge which we have set forth, the court adding: “as claimed by the defendant, then your verdict will be no cause of action, because if that was the contract price, that is, the sum of $5,100, the plaintiff has been fully paid both for the contract price and the extras.” We are not impressed that there is any merit in this assignment of error. The eourt repeatedly charged the jury as to the respective claims of the parties, and it would be difficult to present an issue more clearly than was done in this case.

2. Refusal to give plaintiff’s 8th request to charge. The plaintiff had testified that he had been engaged in the building business in Houghton and vicinity for about 20 years. That fact was undisputed, and was before the j ury. The real gist of this request to charge, which is complained of, is that the court did not say to the jury that they might take into consideration the years of experience of Mr. Michaels as a contractor, because the court did submit to the jury the question as to the actual cost of erecting and completing said building. The fact that the plaintiff had had years of experience was a circumstance already before the jury, and we do not think it was error for the court to decline to call their attention especially to it. He had advised the jury to review carefully all the circumstances in the case, but did not call attention to any particular witness. We find no error here.

3. Did the court err in permitting the defendant and his wife to testify as to the leaky condition of the building? We think the reason given by the circuit judge in denying the motion for a new trial upon this point is sufficiently clear to show that there was no error in receiving this testimony under the circumstances; the plaintiff had gone into general testimony as to the cost and expense of erecting such a building. This testimony was offered in rebuttal of the plaintiff’s claim that the building was erected in good and workmanlike maimer, and was worth the amount claimed by the plaintiff.

4. We think the court’s ruling in refusing to receive testimony as to the amount of work and labor furnished gratuitously by the plaintiff in the construction of the building was correct. There was no issue upon that subject, and the matter was entirely irrelevant and immaterial to the issue.

5. Did the court err in refusing to grant a new trial on the ground of newly-discovered evidence? We think not. The fact that defendant had made an application to the loan association was, upon this record, well known to the plaintiff. The money resulting from this loan had been sent by the building and loan association directly to the plaintiff. The court will take notice that the trial took place in the immediate vicinity of Hancock, the home office of the building and loan association. We agree with the circuit judge in holding that this was not newly-discovered evidence in the proper sense of that term. Motions for new trials, upon the ground of newly-discovered evidence, are not favored by the courts. The so-called newly-discovered evidence might have tended to impeach the testimony of the defendant in some particulars, but, taken as a whole, we doubt if it even did this. We think there was a lack of due diligence on the part of the plaintiff, as held by us in numerous decisions upon the question. Canfield v. City of Jackson, 112 Mich. 120; Edwards v. Foote, 129 Mich. 121, 125; First National Bank v. Union Trust Co., 158 Mich. 94, 105; Spray v. Ayotte, 161 Mich. 595.

6. Was the verdict against the overwhelming weight of the evidence? We cannot say, after carefully reading this record, that it was. There was a sharp issue upon a single point with numerous witnesses upon each side. The case presented was one of fact, pure and simple, and the jury, under a clear and explicit charge, have answered the question by their verdict, and we do not think we should disturb that verdict.

7. Should this judgment be set aside and a new trial granted, because by the undisputed testimony there was due the plaintiff at the trial the sum of $28.76? This did not come to the attention of either the court or counsel during the trial of the case. There was no request upon the subject. The case was tried upon the issue as to what the contract price for the erection of the building was. This balance due was overlooked, by both counsel and court, until the court’s attention was first called to the fact on the argument of the motion for a new trial, it not being even mentioned in the motion itself. It is a sufficient answer to this whole question to say that there is no assignment of error upon the subject. That relating to the weight of the evidence does not reach it. So far as the $28.76 are concerned, the plaintiff could have brought action in justice’s court therefor. Under 3 Comp. Laws 1915, § 13688, subd. 5, had a verdict been rendered and judgment entered for the sum of $28.76, the plaintiff could not have recovered costs against the defendant. But, on the contrary, under 3 Comp. Laws 1915, § 13691, the defendant would be entitled to a judgment against the plaintiff for his full costs, which would be more than the balance due. We think the offer made by defendant’s counsel, “that the verdict be affirmed without costs to the defendant in the circuit court,” a very just one.

We find no reversible error in the record and the judgment of the circuit court is affirmed, with costs of this court to the defendant, but without costs in the circuit court, by reason of defendant’s waiver of such costs.

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


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    ALBRIGHT v. STOCKHILL.
    1. Fraudulent Conveyances — “Bulk Sales Law,” Sales in Violation of — Void as to Creditors — Valid Between Parties.
    The “bulk sales law” (2 Comp. Laws 1915, § 6346 et seq.) was enacted for the purpose of preventing fraud by debtors upon creditors, and a sale made in violation thereof is void only as to creditors, and is valid between the seller and buyer.
    2. Same — Fraud—Right of Defrauded Party to Relief.
    If in a sale made in violation of the “bulk sales law” the seller has been guilty of any fraud to the injury of the buyer, or if there has been a grossly inadequate consideration, the seller cannot hide behind the statute and thus avoid liability to the buyer.
    3. Equity — Fraud—“Clean Hands” — Violation — “Bulk Sales Law.”
    In a suit to rescind, on the ground of fraud and failure of consideration, a contract for an exchange of plaintiff’s farm for a stock of goods and other property belonging to defendant, without complying with the “bulk sales law,” tbe doctrine of “clean hands” has no application, the rights of creditors not being affected.
    4. Same — Gross Inadequacy of Consideration.
    Mere inadequacy of consideration, unless it is so gross as to shock the conscience of a chancellor, is not itself a ground on which a contract will be rescinded, and where the consideration failed in part, damages may be awarded to the amount plaintiff is damnified, instead of the contract being rescinded.
    5. Same.
    Where the consideration is so grossly inadequate as to shock the conscience, courts will interfere, although there has been some exercise of judgment by the parties fixing it.
    S. Fraudulent Conveyances — “Bulk Sales Law,” Sale in Violation of — Void as to Creditors.
    No contract of sale valid as to creditors of the seller can he entered into unless the requirements of the "bulk sales law” are complied with.

      On effect of misrepresentations in statement seller is required to make as a condition of a valid sale in bulk, see note in 45 L. R. A. (N. S.) 492.

      7. Fraud — Matters of Opinion — Vendor and Purchaser.
    Mere expressions of matters of opinion as to values, upon which men might fairly and honestly differ, cannot he made the basis of fraudulent representations.
    8. Same — Representations—Evidence—Sufficiency.
    In a suit to rescind a contract whereby plaintiff received, in exchange for his farm, among other property, an electric light plant, testimony in support of plaintiff’s claims of fraudulent representations as to cost of operating and income from same, field, insufficient to sustain the burden of proof.
    9. Equity — Fraud—Gross Inadequacy of Consideration — Equitable Relief.
    Where, in exchange for plaintiff’s farm, defendant put in as part of the consideration therefor a stock of goods without complying with the “bulk sales law,” and without revealing to plaintiff the fact that creditors’ claims equaled the value thereof, and to the extent of such value the consideration failed, whether the withholding of such information was intentional or due simply to ignorance of the law, there was such failure of consideration, amounting to gross inadequacy of consideration, as calls upon a court of equity to grant relief.
    10. Same — Jurisdiction—Ret.tbf.
    Although at the time plaintiff filed his hill he was not in position to ask rescission, equity will retain jurisdiction and grant such relief in damages as he is entitled to.
    11. Same — Remedy at Law — Failure of Consideration — Equitable Relief.
    The mere fact that the person defrauded might have a remedy at law would not deprive him from coming into a court of chancery and having the agreed consideration, or the value of the premises, declared to he an equitable lien upon the lands.
    Appeal from Ionia; Davis {Frank D. M.), J.
    Submitted April 29, 1919.
    (Docket No. 23).
    Reargued November 5, 1919.
    Decided December 23, 1919.
    Bill by Edwin Z. Albright against Amos Stockhill and others to set aside and rescind an exchange of properties on the ground of fraud. From a decree for plaintiff, defendants appeal.
    Modified.

      Hawley & Eldred, for plaintiff.

      Hatch, McAllister & Raymond and Ellis & Ellis, for defendants.
   Stone, J.

This case is here upon the appeal of defendants from a decree for the plaintiff in the court below. . The plaintiff and the principal defendant, Amos Stockhill, traded properties. The bill was filed to set aside and rescind such exchange on the ground of fraudulent representations made by the said defendant Stockhill to the plaintiff, for the purpose of inducing such exchange; and it is claimed that such false representations were successful in inducing the bringing about the exchange of such property. The trade was consummated on March 29, 1917. Under the agreement for exchange the plaintiff was to convey his equity, or interest in a farm in the township of Lyons, Ionia county, consisting of 124 acres, which he valued at the sum of $12,400, subject to an incumbrance of $7,225, together with the personal property on said farm, including livestock, agricultural implements, hay, etc., valued by him at about $2,900, for a grain elevator, warehouses, electric light plant, and implement business and stock in trade connected with and incident to such business and plants, located at Conklin, Ottawa county, belonging to the said defendant Stockhill — the stock in trade consisting of agricultural implements, flour, feed, etc. The value of the real estate, including elevator and warehouses and a small building on railroad property, and the electric light plant, were in the contract at $8,775. In this deal said defendant Stockhill was also to sell and deliver his stock in trade to the amount of $1,500; and if the stock exceeded in value, upon inventory at cost price, the sum of $1,500, the plaintiff was to pay for the difference in cash, or in promissory notes.

The specific charges of fraud in the bill of complaint are as follows:

“That said Stockhill at said time and place falsely represented, stated and claimed, with the intent to cheat and defraud this plaintiff, that practically the only expenses involved in running the said electric light plant consisted of the fuel used therefor, and that the cost of such fuel would not then and there exceed the sum of $30 per month, and that the income from said plant was at' that time the sum of $90 per month.”

Also that:

“Said defendant Stockhill falsely and fraudulently stated, claimed and represented to this plaintiff, and in his presence and hearing, that said stock in trade was entirely free from incumbrances, and that the same were fully paid for and that no claims or debts existed against the same.”

The bill also charges as follows:

“This plaintiff further alleges that he believed said false and fraudulent statements and representations so made as aforesaid by said defendant Amos Stock-hill, and relied thereon and was deceived thereby; that, in reliance upon said false and fraudulent statements and representations, he purchased or exchanged for said grain elevator, electric light plant, agricultural implement business and stocks in trade of the said defendant Stockhill, and gave and delivered therefor his said property aforesaid, and without complying or requiring said Stockhill to comply with the laws of this State, and particularly with the statute known as the ‘bulk sales law’ of this State, in purchasing or exchanging for said mérchandise stock in trade of said defendant Stockhill; that, in truth and in fact, it required at the date of said false and fraudulent representations, to wit, March 28, 1917, at least $55 worth of fuel to run or operate said electric light plant for the period of one month, and that the income derived therefrom was not the sum of $90 per month and did not average to exceed the sum of $70 per month, and that the same was a losing and not a paying proposition, and that said merchandise stock in trade of said defendant Amos Stockhill, was not on said 28th day of March, A. D. 1917, or at any time during said negotiations fully paid for, and was not free from debt, and that there were bills outstanding against the same, and that the aggregate of said indebtedness against said merchandise stock in trade of said defendant, which was on said 28th day of March, A. D. 1917, due and unpaid was then and there the sum of at least $2,800, and that said creditors of said defendant Stockhill now claim and insist, that this plaintiff is obligated under the laws of this State to pay the full amount of said merchandise bills, and are now claiming and insisting that by reason of his failure to comply with said ‘bulk sales law,’ that he, this plaintiff, shall and must pay said claims aggregating the said sum of $2,800 and are threatening to sue this plaintiff therefor; that under those circumstances, when this plaintiff was informed that any such bills were outstanding, he called said defendant’s attention to the same and requested that he attend to the payment of such bills and relieve plaintiff of any liability therefor, all of which said defendant has failed, refused and neglected to do; that this plaintiff is advised that he may be liable for the payment of such claims unless relieved by the order and decree of this court on account of such fraud practiced upon him by said defendant, and that thereby this plaintiff has been greatly wronged, cheated and defrauded by said defendant Amos Stockhill.”

As showing the theory upon which the case was heard in the court below, we quote somewhat at length from the written findings of the learned circuit judge, as contained in the record:

“The testimony of the plaintiff is to the effect that this transaction and exchange was made and entered into by himself and the defendant Stockhill, and that although defendant Emmons was then and there a co-partner in said business he did not figure in said transaction; that said Stockhill claimed to be the owner of the property, and at the first meeting at Conklin, stated and represented to the plaintiff that the personal property which he proposed to exchange would be free and clear from all incumbrance at that time that such exchange was actually consummated; that on the 29th day of March, 1917, when said exchange was actually consummated and the property delivered from the one to the other, the defendant Stockhill represented that said personal property was free and clear from all and every incumbrance, that there was nothing against it; that the said plaintiff believed such representations and relied upon them in making such exchange, and would not have made such exchange had he not believed said representations.
“A bill of sale was given by Stockhill to plaintiff of the personal property, and contains the following statement:
“ ‘And for the purpose of mating this sale to first party hereby represents that the property hereby conveyed is free and clear from all and every incumbrance whatever.’
“It appears upon the trial, from Stockhill’s admissions, that the bill of sale was fully understood by him, it having been read over to him carefully. Upwards of $2,200 worth, according to the inventory value thereof, of merchandise, stock in trade and fixtures, was included in this bill of sale. It further appears that at the time defendant Stockhill was indebted upon unsecured indebtedness in the sum of nearly $7,000.
“It is the claim of the plaintiff, in view of this indebtedness and the provisions of the bulk sales law of this State, the representations of defendant Stock-hill that this personal property was free and clear from all incumbrance and that there was nothing against it was false and fraudulent and known to the said Stockhill to be so. Plaintiff also claims he had a right to believe and suppose by said representations in such bill of sale that he was obtaining by means of this exchange an absolute title to this personal property.
“Much argument was haa upon the hearing of the effect of the bulk sales law, as to whether it was an incumbrance or not. In that respect I conclude and find that third persons by the way of being creditors under the statute had a right or interest in this property ; that they had a paramount right to the plaintiff, and that instead of having an absolute title the plaintiff, in view of the fact that a large indebtedness existed against the defendant and by the admitted conveyance of' said personal property, its effect was to make the plaintiff a trustee for the benefit of cerditors and not an absolute owner of the ¡átock free and clear from incumbrance. The ordinary understanding of the word ‘incumbrance’ would signify that it was a burden, or a right of some third party against the property.
“In this case the defendant Stockhill knew well of his indebtedness to creditors in relation to said stock. It appears from the evidence that plaintiff knew nothing of such indebtedness. In my judgment, he had a right to rely upon such statement of its being free from incumbrance, and in receiving a bill of sale containing this language that he was getting title; that there was no burden imposed upon the same, and that no other parties had superior rights to his. Stockhill was in possession of the facts, the other man was not. As to this there can be no question but that a fraud was committed by the defendant. The only incumbrance that was mentioned as an exception to the representations was a certain real estate mortgage of about $2,700. Stockhill well knew that plaintiff had to rely upon him to ascertain the true condition of affairs.
“It is urged by the defendant that because he was guilty of not having an inventory prepared and requiring a list of the creditors he was guilty of a wrong and therefore could not recover in this case even though Stockhill might have been guilty of misrepresentations. It would hardly do to hold that such would be the law under the circumstances shown in this case. Were both parties in possession of all the facts this rule might obtain. So I find that the contention of the plaintiff has been sustained by the proofs, defendant is guilty of fraud and giving to the plaintiff the right of rescission.”

An examination of this record shows that both the plaintiff and the principal defendant Stockhill were men of considerable business experience. They both had a good opportunity to examine each other’s property, and apparently both parties were anxious to make the exchange. When they dealt, neither paid any attention to the “bulk sales law,” and they both testified that they did not know that there was such a law in existence. We are satisfied that the whole reason and cause of this suit was the fact that the parties neglected to comply with that law. Conceding that there was evidence to support the finding of the learned circuit judge, there is no evidence or claim that any inquiry was made by the plaintiff, or representations made by the principal defendant Stockhill, as to the amount of the latter’s debts, or of the debts of Stockhill and Emmons, for Stockhill seems to have represented both himself and Emmons in the deal.

The case seems to have been tried and decided in the court below wholly upon the theory that because defendant Stockhill warranted this property free from all incumbrances as stated in the bill of sale, that that included and satisfied the “bulk sales law.” Sections 1 and 3 of the “bulk sales law,” being sections 6346 and 6348 of the Compiled Laws of 1915, are so accessible and familiar to all that they need not here be inserted. These statutes have been the law of this State since 1905, and their provisions have been repeatedly considered by this court. The learned circuit judge seems to have been of the opinion that the defendant Stockhill, alone, was responsible for the condition of the parties, and he sought to place them in statu quo.

We are met at the threshold of the case with the claim of the defendants that the case is controlled by, and should be disposed of upon the authority of, Farrar v. Lonsby Lumber & Coal Co., 149 Mich. 118, and that the parties having both acted in violation of the law, the appellee does not come into court with clean hands, and hence cannot prevail. It should be borne in mind that the instant case presents a situation of failure of consideration to the extent of the value of the stock in trade and fixtures sold by defendant Stoekhill to the plaintiff. The consideration by reason of the debts existing against the stock in trade and fixtures exceeding their value, is so grossly inadequate as to shock the conscience of a chancellor. The “bulk sales law” was enacted for the purpose of preventing frauds by debtors upon creditors, and the purpose of the act is to protect the creditors. A careful examination of the question satisfies us that the whole trend of our decisions, as well as the decisions of other courts construing statutes similar to ours, is to the effect that the purpose of this and similar acts is to protect creditors, and that a sale made in violation of the statute is void only as to creditors. Spurr v. Travis, 145 Mich. 721 (9 Ann. Cas. 250); Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478; Coffey v. McGahey, 181 Mich. 225, 232; Squire v. Tellier, 185 Mass. 18 (69 N. E. 312).

Such sale as between the seller and buyer is valid; but if the seller has been guilty of any fraud to the injury of the buyer, or if there has been a grossly inadequate consideration, such as is above described, the seller cannot hide behind the statute and thus avoid liability to the purchaser. What was held in Farrar v. Lonsby Lumber & Coal Co., supra, is that a sale void as to creditors cannot, as between the parties, be made to operate to give the vendee a lien for the money he has paid. The remedy sought in that case was against the property (or the proceeds of it) sold in violation of the “bulk sales law.”

In the case at bar the relief sought by the plaintiff does not affect the rights of creditors of the seller of the goods, but is aimed at a recovery from the seller of the property in exchange for the goods. Here, confessedly, is a void sale as to creditors of a stock of goods and fixtures, and the plaintiff turned over his farm and the stock thereon in payment. The creditors of the vendor have taken steps to secure their rights. It is conceded that the debts of defendant Stockhill exceed the value of the stock of merchandise and fixtures pertaining to the conducting of said business. The question lies wholly between the vendor and the vendee, and does not affect the creditors at all, and the doctrine that one must come into a court of equity with clean hands in order to obtain relief has, in our opinion, no application here. While we do not think that a case for rescission of the entire contract has been made out by the evidence in the case, still it would be most inequitable to compel the plaintiff to lose the entire value of the stock in trade and fixtures, where the creditors are subjecting such property to the payment of their claims. We do not think that the Farrar Case stands in the way of granting some relief to the plaintiff. Of course it is understood that though the purchaser of a stock of goods in bulk did not comply with the “bulk sales law,” he does not become liable for all of the debts of the seller, but only for the seller’s debts so far as they can be satisfied out of the stock of goods and fixtures of which he is held to be the receiver for the benefit of the seller’s creditors. As we have said, this legislation was intended for the protection of creditors. It may be said that the goods, as to his creditors, belong to the seller, and the vendee is a receiver accountable to such creditors for all the goods and fixtures that have come into his possession by virtue of such sale. In other words, the sale was absolutely void as to creditors. Mere inadequacy of consideration, unless it is so gross as to shock the conscience of a chancellor, is not, itself, a ground on which specific performance of the contract will be refused, or one on which a contract will be rescinded. 9 Cyc. p. 367. The rule has been stated to be that where the consideration is so grossly inade-r quate as to shock the conscience, courts will interfere, although there has been some exercise of judgment by the parties fixing it. 6 R. C. L. § 86, p. 679. No contract of sale, valid as to creditors of the seller, can be entered into unless the requirements of this statute are complied with.

We have examined this case with great care to determine whether it is one for the rescission of the entire contract; or a case in which the plaintiff shall have relief to the extent that the consideration has failed. As between the seller and buyer, it is as though the title to the stock in trade and fixtures had failed. With the exception of the stock in trade and fixtures, these parties seem to have dealt at arm’s length. Both were men of experience in business. The properties were thoroughly examined before the trade was made. The plaintiff not only had the opportunity, but did examine the property which he purchased. When he asked as to the earnings of the electric light plant he was referred to the bookkeeper, who answered his questions. No fault was found by the plaintiff with any portion of the property, except the stock in trade and fixtures, for more than four months after the trade was consummated. He had learned that the statute had been violated. In the meantime plaintiff was in possession of the property purchased, making such changes as he saw fit to make, selling the warehouse, offering the entire property for sale, and finally, when he filed his bill, he made complaint only as to the stock in trade and fixtures, and as to the expense of running the electric light plant.

Upon the hearing there was some testimony offered by the plaintiff tending to show that the other property .which defendant Stockhill traded was not of the value represented by him. Both of the parties had a good opportunity to examine each other’s property and to determine what there was in it, and they both took advantage of that opportunity. It is conceded by plaintiff’s counsel that the bill of complaint is not broad enough to cover this point, but it is urged that under the practice there is no reason why this court should not amend the bill of complaint in the furtherance of justice. We recognize the rule that counsel here suggests, but we are of the opinion that under the evidence there were no such representations as to the value of the property made by the defendant Stock-hill as in any way tended to the prejudice of the plaintiff. The plaintiff was a man of affairs and exercised his own independent judgment, as shown by the evidence in the case. The mere fact that Stockhill had listéd the property at a lower price would not preclude him from increasing the price in the case of a trade; and the statement as to the value of the property would not be such a false representation as could be made the basis of a rescission of the contract. Mere expressions or matters of opinion as to values, upon which men might fairly and honestly differ, cannot be made the basis of fraudulent representations. Collins v. Jackson, 54 Mich. 186; Buxton v. Jones, 120 Mich, 522; Hammer v. Martin, 205 Mich. 359, and cases there cited; 20 Cyc. p. 52.

Upon the other question as to the representation of the cost of operating the electric light plant and the income from the same, the evidence does not support the claim of the plaintiff and he has not sustained the burden of proof in that regard. What we have just said does not apply to the sale of the stock in trade and fixtures connected with the business. While the condition existing as to the debts of the seller did not make such an incumbrance upon the property as to violate the clause in the bill of sale, that it was free from incumbrance, yet, in a sense, it may be said, and as would doubtless be understood by laymen, the title to the property was not clear as to creditors, and the defendant Stockhill could not convey title to it to the plaintiff to the injury of the former’s creditors. In any view of the case, we come back to the proposition that as to the debts of defendant Stockhill and their relation to the stock in trade and fixtures, the facts were not disclosed to the plaintiff. Whether the withholding of this information of the amount of defendant Stockhill’s indebtedness was intentional on his part, or was withheld simply in ignorance of the law, the fact still remains and cannot be controverted, that there has been as to the stock in trade and fixtures such a failure of consideration, amounting to gross inadequacy of consideration, when the whole trade is considered, as calls upon a court of equity to grant the plaintiff some relief.

We do not think the plaintiff, when he filed his bill, in view of all his conduct with reference to this property, was in a condition where he could properly ask a court of equity to rescind the entire contract; but we do think that he was in a position, upon the facts stated and evidence introduced relating to the stock in trade and fixtures, to ask some relief from the court; and we think the court should retain jurisdiction and grant such relief. It is conceded by defendant’s counsel that, if the plaintiff paid out money for Stockhill and Emmons, he might in an action at law collect it as money paid for the use of Stockhill, or he might recover it of Stockhill as a balance, under the facts, due him on the sale. We do not think it is necessary to send the plaintiff into a court of law for this relief. The stock in trade and the fixtures constitute an entire loss to the plaintiff. We take it that there is no question about that, as to the amount. If there is any question, it can be settled by an accounting in this case upon a remand to the circuit to take further proof. To the extent that plaintiff has suffered and been damnified, or shall be damnified, he is entitled to relief against the defendant Stockhill and may have a lien for such sum upon the farm in Ionia county. Carroll v. Rice, Walk. Ch. 373; Merritt v. Allen, 38 Mich. 487; Merrill v. Wilson, 66 Mich. 232; Lefevre v. Chamberlain, 228 Mass. 294 (117 N. E. 327).

We invite especial attention to the rule as stated in Merrill v. Allen, supra, where it is held that the existence of a legal remedy will not prevent resort to equity to have the agreed consideration, or the value of the premises out of which the complainant had been cheated, declared an equitable lien on the lands sold. It is there said:

“The mere fact that the person defrauded might have a remedy at law would not deprive him from coming into a court of chancery and having the agreed consideration, or value of the premises, declared to be an equitable lien upon the lands.”

i Here, under the general prayer for relief, we have no doubt of the power of the court of equity, and of this court, to grant relief to the plaintiff to the extent that he has been damnified, or will be damnified by reason of the failure of the consideration as to the stock in trade and fixtures.

In Merrill v. Wilson, supra, where fraud had been practiced by the defendant, and the plaintiff, by reason of his dealing with the property, was not in position to ask rescission, this court held that he was entitled to enforce a vendor’s lien for the unpaid purchase money, his bill stating a case upon which such relief could be based.

The case should go back to the circuit court, in chancery, and evidence should be taken showing the value of the stock in trade and fixtures connected with the business, and the extent to which the plaintiff had been damnified, or shall be damnified by payment, by reason of the suits in garnishment, or otherwise, against him as receiver for this stock of goods and fixtures; and he should have a decree for that amount, which should stand as a lien against the said farm in Ionia, county, and in the nature of a vendor’s lien.

Questions as to the claimed exemption of any portion of this property, if such are involved, can be dis-. posed of in such accounting. We express no opinion upon the subject of exemptions from execution of any part of this property, as the subject has not been briefed or argued, but the question may be dealt with in the accounting. McCormick v. Kistler, 175 Mich. 422 (45 L. R. A. [N. S.] 497).

The injunction granted in the 11th paragraph of the decree below as to selling, incumbrancing, mortgaging, or otherwise disposing of the said defendant Stockhill’s interest in the farm in Ionia county will be continued in force,

A decree will be entered in accordance with this opinion; and as neither party has fully prevailed in his claim, no costs will be allowed in either court, but each party shall pay one-half the expense of printing the record. Decree below modified.

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


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    WASHTENAW MUTUAL FIRE INSURANCE CO. v. BUDD.
    1. Insurance — Fire Insurance — Action Against Wrongdoer.
    Where insured has sustained a loss, he is not required to invite the insurer to take part in an action against the wrongdoer, nor to take any special steps to protect the-a insurer; but it is the insurer’s privilege to intervene and protect his own rights, if he sees fit to do so, under 3 Comp. Laws 1915, § 12362.
    2. Same — Subrogation of Insurer to Judgment Against Wrongdoer — Valued Policy.
    Where the total amount received by the insured from the insurer and the wrongdoer, after deducting attorney’s fees and costs, did not exceed the value of the property destroyed, the insurer was not entitled to subrogation against the insured to the judgment recovered against the wrongdoer, although the policy was a valued policy, it appearing by its terms that the insurance was only two-thirds of the estimated value.
    ón right of insurer which has paid the loss as against insured who has recovered against or settled with third persons responsible for the loss, see note in 41 L. R. A, (N. S.) 719.
    Appeal from Washtenaw; Sample (George W.), J.
    Submitted October 14, 1919.
    (Docket No. 41.)
    Decided December 23, 1919.
    Bill by the Washtenaw Mutual Fire Insurance Company against Norris Budd, executor of the last will of Abraham D. Budd, deceased, and the Ann Arbor Railroad Company for subrogation to the amount of a judgment against defendant company. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Frank E. Jones, for plaintiff.

      Arthur Brown and John P. Kirk (E. R. Sunderland, of counsel), for defendant Budd.
   Stone, J.

The bill of complaint herein was filed to obtain a subrogation of plaintiff, and to reach certain'moneys collected by Abraham D. Budd from the Ann Arbor Railroad Company, and that said Budd be decreed to be the trustee of the plaintiff. The salient facts were substantially as herein stated. The plaintiff is a Michigan mutual fire insurance company, with offices at the city of Ann Arbor. For a number of years Abraham D. Budd had been a member of said plaintiff company, and had insured, in accordance with the charter and by-laws of said company, certain property, of which he was the owner, under policy No. 1,261, situated on section 21 in the township of Pittsfield, county of Washtenaw, mentioned in the policy, for the following amounts: $900 on dwelling house No. 1; $200 on household furniture, etc.; $300 on barn and shed; $300 on bam No. 2; $100 on granary; $700 on farm products, farm implements, carriages and livestock in Washtenaw county, subject to all the terms and conditions of the policy. The policy stated that the “amount insured represented 2/3 of estimated value.” The relevant by-laws of the plaintiff were as follows:

“7. This company will not Insure property for more than two-thirds its cash value. The directors of the company to be the judges of such valuation.”
“10. In case of loss or damage to personal property-insured, the company is liable for two-thirds of such loss or damage, provided full value of the property lost or damaged, as appraised by the directors, does not exceed the estimated cash value of the personal property insured in the policy of the loser in the respective class in which the loss occurs.”

¥/hile said insurance was in force, on the 23d day of September, 1916, one barn and shed $300, one bam No. 2 $300, one granary $100, were destroyed by fire, with certain personal property which was covered by said policy of insurance of the value of $456.75. The loss as adjusted by the plaintiff company — the full amount of the insurance on the buildings ($700) and two-thirds the value as fixed on the personal property ($304.50), making in all $1,004.50. This amount was. on the 26th day of September, 1916, paid by plaintiff company to Abraham D. Budd (since deceased) . Soon after this payment and about December 5, 1916, the said Abraham D. Budd, the insured, without consultation with any of the officers or representatives of the plaintiff, began suit for the recovery of damages to his buildings and property by fire, against the Ann Arbor Railroad Company, alleging that the fire was caused by the negligence of said railroad company. On June 7, 1917, he recovered a judgment against the said railroad company for said damages in the sum of $1,000 and costs, which judgment was afterwards affirmed by this court. See Budd v. Railroad Co., 200 Mich. 250.

While said case was pending upon appeal, this bill of complaint was filed, and an injunction issued restraining the payment or collection of said judgment until the further order of the court; also praying for subrogation, as above stated, to the claim or judgment against said railroad company to the amount which the plaintiff, as insurer, had paid to said Budd under said policy. ¡

Pending the instant case, and after the same was at issue, Abraham D. Budd died testate, and Norris Budd, executor, was permitted to come in and defend in this case. A motion was then made for dissolution of the injunction so that the defendant should be permitted to collect the judgment, which had been affirmed in this court, and this was granted upon the filing of a bond by defendant, and the judgment against the railroad company has since been collected by the executor, so that the Ann Arbor Railroad Company is no longer an interested party in this case. A hearing was had before the trial court, and an opinion rendered by the circuit judge in which it is stated that inasmuch as the amount received by the defendant was not sufficient to cover, net to defendant, the amount of damage and loss he had suffered, the plaintiff was not entitled to a decree, and the bill of complaint was dismissed with costs. The opinion of the learned circuit judge is so brief and pointed, and upon the facts found so accords with our view of the evidence, that we insert, the same here in full:

“This is a suit in equity in which the plaintiff seeks to recover as a trust fund certain moneys which the defendant, Abraham D. Budd, obtained as damages from the Ann Arbor Railroad Company, for the loss of his property caused by sparks from a locomotive of the railroad company. It appears that defendant, Abraham D. Budd, on September 23, 1916, was the owner of certain buildings and personal property located on a farm near the right of way of the Ann Arbor railroad in this county. Part of his property was, at that time, insured in the plaintiff insurance company. On that day, a considerable part of this property was destroyed by fire, caused by sparks from a locomotive belonging to the Ann Arbor Railroad Company. After the fire, the plaintiff settled with defendant Budd for this loss under its policy of insurance, appraised the property and paid to the defendant Budd $1,004.50, which was two-thirds of the value of the property loss on the insured property, and was the amount for which the insurance company was liable under the terms of its policy.
“Afterward, defendant Budd brought an action. against the Ann Arbor Railroad Company for negligently causing the loss of his property by fire, and recovered a judgment against the railroad company for $1,000 which was paid. The plaintiff insurance company now seeks to obtain this money on the grounds than since it settled with the defendant Abraham D. Budd for the loss, under its policy of insurance, it is entitled to be subrogated to the entire claim of the defendant against the railroad company. It is conceded that the amount received from the railroad company after deducting the attorney’s fees and paying the costs, was $523.17. The plaintiff does not question the reasonableness of the fees charged by the' attorney for trying the case in the circuit court and' carrying through the appeal in the Supreme Court, and I see no occasion for questioning their reasonableness.
“The total net compensation which defendant Abraham D. Budd received for the loss of his property was, therefore, $1,527.67, made up of the two items of $1,004.50 from the plaintiff insurance company, and $523.17, net recovery from the railroad company. The value of the property destroyed by the fire appeared from the plaintiff’s own evidence, to be $1,682, though the defendant’s evidence tended to show a much greater value. But on the plaintiff’s own showing, defendant Abraham Budd received from all sources $154.50 less than the amount he actually lost by the fire.
“The law, on the point here involved, has been very clearly laid down by the supreme courts of several States, although the exact question has not been directly passed upon in this State, and I think the principle is to be considered well settled. As said by the supreme court of Kansas, in a recent decision, Shawnee Fire Ins. Co. v. Cosgrove, 86 Kan. 374 (121 Pac. 488, 41 L. R. A. [N. S.] 719):
“‘The general rule is unquestionably that the insurer can recover from the insured, of the sum of insurance paid upon its policy, only the excess received from the wrongdoer, after full compensation for his loss, including the costs and expenses thereof.’
“To the same effect is Svea Assurance Co. v. Packham, 92 Md. 464 (48 Atl. 359, 52 L. R. A. 95).
“Applying this rule of law to the case before me, there is nothing to be turned over to the plaintiff insurance company. The plaintiff is entitled only to the excess which the defendant received from it after full compensation for his loss, including costs and expenses. This loss was, on plaintiff’s own showing, $1,882, and his total receipts, after deducting costs and expenses, were only $1,527.67. The defendant still lacked $154.50 of being fully compensated for his loss, and, therefore, the plaintiff has no valid claim against Abraham Budd.
“A decree may, therefore, be entered in accordance with the foregoing opinion and the bill of complaint of the plaintiff in this cause dismissed, with costs to be taxed against the plaintiff.”

The plaintiff has appealed from the decree entered in pursuance of the opinion, and it is its claim that the right of the insurance company to be subrogated is a recognized ground of equitable relief. There is no question raised by defendant that, under the authorities, the plaintiff, as insurer, would have a right to be subrogated as to any excess over the loss sustained by the insured; but it is the claim that, inasmuch as nothing more than sufficient has come to the hands of defendant, by both the amount paid by the insurance company and the amount recovered from the railroad company, to cover his loss, there is nothing which the plaintiff can take. The general doctrine of the right of subrogation is not questioned by the defendant. In fact such right was recognized by this court in Union Ice Co. v. Railway Co., 178 Mich. 346, 352.

An examination of the authorities cited by counsel upon both sides has satisfied us that the learned circuit judge reached the correct conclusion upon the facts found by him, which facts, we think, are fully sustained by the evidence. It is conceded by the plain-’ tiff’s attorney that $176 worth of property that was not insured at all was destroyed, and was included in the judgment against the railroad company.

Stress is laid by plaintiff’s counsel upon the absence of the insurer from the litigation against the railroad company. We think that the evidence shows that the company had knowledge of such litigation. We understand the rule to be that the insured is not required to invite the insurer to take part in an action against a wrongdoer, nor to take any special steps to protect the insurer; but it is the insurer’s privilege to intervene and protect his own rights, if he sees fit to do so. Our statute now fully provides for such intervention; but it provides that “intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.* Judicature Act, chap. 12, § 11 (8 Comp. Laws 1915, § 12362). The cases cited by the circuit judge in his opinion, we think, fully sustain his position.

The claim is put forward by plaintiff’s counsel that the policy here was a valued policy, and North of England Iron S. S. Ins. Ass’n v. Armstrong, L. R. 5 Q. B. 244, is cited and quoted from as follows:

“We are satisfied that our judgment must be in favor of the plaintiffs; and I ground my judgment upon the general proposition that where the value of the thing insured is stated in the policy in a manner to be conclusive between the two parties, the insurer and the insured, as regards the value, then in respect of all rights and obligations which arise upon the policy of insurance, the parties are estopped between one another from disputing the value of the thing insured as stated in the policy.”

It is conceded by defendant’s counsel that probably the policy here involved was a valued policy so far as the buildings were concerned, but was an open policy as to the personal property, and it is contended that this can make no difference with the result of this case upon the facts found, it appearing that the amount insured represented only two-thirds of the value.

As opposed to the English doctrine as indicated in the case last cited, counsel for defendant call attention to The Livingstone, 65 C. C. A. 610, 130 Fed. 746, where the United States circuit court of appeals for the second circuit deals with this question and disapproves the English rule. It was held there that an insured who had been paid for a total loss, according to the valuation in a valued policy, could recover the real value of the property from the wrongdoer who caused the loss, and could retain everything recovered in excess of the valuation in the policy paid by the insurer. In other words, the court held that a valued policy did not prevent the insured from recovering and retaining more than the valuation named. The Federal court there referred to the Armstrong Case, and said:

“That decision carries no greater weight in this country than is compelled by the force of its reasoning, and, after careful consideration, we are unconvinced by its logic and are unable to accept its conclusions.”

It also appears that the Livingstone Case was approved by the Supreme Court of the United States, to the extent of denying a writ of certiorari to review it. See 194 U. S. 637 (24 Sup. Ct. Rep. 860). We think the Livingstone Case states the better doctrine. What plaintiff really claims is that this policy was a valued policy in the sense that the property was valued at the same amount as the indemnity. But the policy by its terms expressly negatives such a valuation, when it says that the amount insured represents two-thirds of the estimated value.

We are so fully in accord with the views expressed by the learned circuit judge that we think the decree below should be affirmed, with costs to the defendant. It is so ordered.

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


text:
    VEENSTRA v. DEGOLIA.
    Partnership — Accounting—Evidence—Sueítoiency.
    In. a suit for a partnership accounting, the decree of the court below in favor of plaintiff, held, justified by the record.
    Appeal from superior court of Grand Rapids; Dun-ham (Major L.), J.
    Submitted October 15, 1919.
    (Docket No. 52.)
    Decided December 23, 1919.
    Bill by Jelle Veenstra against William E. DeGolia to restrain an action at law and for an accounting. Defendant filed a cross-bill for an accounting. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Smedley & Linsey, for plaintiff.

      Hartley E. Hendricks and John M. Dunham, for defendant.
   Stone, J.

Bill for an accounting and for an injunction. The plaintiff, the defendant, and one H. J. De-Golia, entered into a copartnership, for the purpose of conducting a general real estate business in the city of Grand Rapids and vicinity. This partnership continued from about May 16, 1917, to December 1, 1917. On May 10, 1918, defendant had plaintiff arrested on a writ of capias ad respondendum. On May 24, 1918, the writ was dismissed by the circuit court. On the same day defendant caused to be issued out of said court a second writ of capias, wherein it was claimed that this complainant was indebted to this defendant by reason of certain fraudulent acts, growing out of certain of their partnership transactions. Thereupon, plaintiff filed this bill of complaint in the superior, court of Grand Rapids, in chancery, asking for án accounting of certain partnership dealings, and for a decree for whatever sum was found to be due him upon such accounting. He offered to pay defendant any sum that the court found due and payable to him upon such accounting. Plaintiff further asked that defendant be enjoined from prosecuting the capias case in the circuit court. Defendant filed his answer in the nature of a cross-bill, and asked that the court decree that plaintiff was indebted to him upon certain partnership transactions. The case was heard upon pleadings and proofs taken in open, court. The testimony, consisting of about 100 pages of the record, involves various and complicated dealings of the parties, and a reading of it satisfies us that an extended discussion of it would serve no good purpose, as questions of fact only are involved.

The learned trial judge, who heard the case, filed a written opinion which clearly and concisely states the facts found, sufficient for an understanding of the questions involved, together with his conclusions thereon. We find ourselves so fully in accord with his findings and conclusions that we adopt the same. It is as follows:

“Findings op Fact.
“The parties to this suit, together with one H. J. DeGolia, were copartners from about the 16th day of May, 1917, to the first day of December, 1917, as general real estate dealers, and that they were to share and share alike in the profits and expenses as such copartners. That neither William E. DeGolia or H. J. DeGolia paid any office rent during that period, the whole of it being paid by plaintiff at the rate of $15 per month, excepting during the time that one Kinney had desk room therein, and during which time he paid five dollars ($5) per month therefor. Plaintiff paid the telephone rental of eleven dollars and fifty cents ($11.50) less about two dollars and eighty-seven cents ($2.87), paid by said Kinney, and the expenses of running said real estate office during the time of said copartnership was five hundred and seventy-six dollars and forty-one cents ($576.41) all of which was paid by the plaintiff with the exception of twenty-five dollars ($25), that is to say, that plaintiff paid of such expenses five hundred and fifty-one dollars and forty-one cents ($551.41). Defendant here is chargeable with one-third thereof and interest amounting to one hundred ninety-four dollars and fifty-five cents ($194.55).,
“I find the defendant here, William E. DeGolia, is indebted to plaintiff for borrowed money, the sum of four hundred and ten dollars and two cents ($410.02). This amount includes seventy-five dollars ($75) borrowed from the Kent State Bank. The two notes given to said bank for that amount, one for the loan and one in renewal thereof, I find was borrowed for and paid to the defendant by plaintiff. I come to this conclusion from the fact that from almost the very beginning of said copartnership, defendant was continually borrowing money of plaintiff, borrowing one hundred dollars ($100) on May 4th, 1917; eighteen days thereafter, he borrowed another one hundred dollars ($100) of plaintiff; on August 21st, he borrowed another one hundred dollars ($100), and I have no question but what he borrowed the seventy-five ($75) of the bank on August 8th, 1917, as plaintiff claims, and that to get it, it was necessary for plaintiff to give the note as he did. I am led to this conclusion of the continual borrowing of defendant from plaintiff and from the fact that the first or canceled note upon this trial was found to be in the possession of the defendant.
“The automobile that was used in this copartnership business was bought and paid for by the plaintiff; neither the defendant nor the other copartner, H. J. DeGolia, ever paid any part of said purchase price. Neither do I find that by any exchange of equity in any real estate by the two DeGoiias to the plaintiff for an interest in said automobile, as claimed by them, is true. The automobile is now the property of the plaintiff, as it always has been.
“Defendant collected three hundred and thirty-four dollars ($334) from Roy J. Bennett at an expense of twelve dollars ($12), one-third of this amount and interest amounting to one hundred and fourteen dollars and eight cents ($114.08) is the amount thereof that defendant owes the plaintiff.
“On the Allendale farm deal, so-called, plaintiff paid to the Coopersville bank the sum of one thousand and eighty-nine dollars and forty-six cents ($1,089.46). Plaintiff received from one Klant in exchange for the Coit estate property, five hundred dollars ($500). Defendant put no money into this proposition; plaintiff acquired the title to the Coit estate property; there is a mortgage thereon of eleven hundred dollars ($1,-100) and it cost plaintiff fifty-seven dollars ($57) in paying back payments and commissions on said loan.
“Plaintiff claims that this property is worth not to exceed eighteen hundred dollars ($1,800), and in open court offered to have it deeded to the defendant for eighteen hundred dollars ($1,800) now or at any time within six months; plaintiff claims that the equity in this property is seven hundred dollars ($700) or the difference between eighteen hundred dbllars and eleven hundred dollars, or seven hundred dollars, but in order to acquire this title and that loan, it cost plaintiff fifty-seven dollars ($57). There is no question but what this property belongs to the parties to this suit, although the title is in the plaintiff’s daughter. At the time plaintiff made this deal, he was a copartner of the defendant, and was defendant’s agent in respect to any copartnership property or matters. Deducting the fifty-seven dollars from the seven hundred dollars ($700), leaves a balance of six hundred and forty-three dollars ($643) in said property belonging to the parties to this suit.
“The plaintiff in his transactions with the Coopers-' ville bank, concerning the Allendale farm, put into that property five hundred and eighty-nine dollars and forty-six cents ($589.46) over and above the five hun-J dred ($500) that he received from said Klant; one-half of this five hundred and eighty-nine dollars and forty-six cents ($589.46) is chargeable against defendant, while defendant is entitled to one-half of six hun-' dred and forty-three dollars ($643) which plaintiff owes defendant, being three hundred and twenty-one dollars and fifty cents ($321.50), while defendant owes plaintiff one-half of five hundred and eighty-nine dol1 ars and forty-six cents ($589.46), which amount is two hundred and ninety-four dollars and seventy-three cents ($294.73), and the difference between these two amounts is fifty-three ($53) dollars, one-half of which belongs to the defendant, amounting to twenty-six dollars and seventy-seven cents ($26.77), which plaintiff should be charged with. Plaintiff also received rent from the Allendale farm while it was in his charge of one hundred and forty dollars ($140); one-half of this belongs to the defendant, or seventy dollars ($70).
“Plaintiff also received twenty-five ($25) commission on a team of horses; one-third of this belongs to the defendant, which is eight dollars and thirty-three cents ($8.33). Eight dollars and thirty-three cents ($8.33) plus seventy dollars is seventy-eight dollars and thirty-three cents ($78.33) and interest thereon which is four dollars and sixty-six cents ($4.66), makes a total of eighty-two dollars and ninety-nine cents ($82.99), and is chargeable against plaintiff.
“With reference to the Bridge street rooming house, plaintiff paid thirty-seven dollars and fifty cents ($37.-50) in relation thereto. Its value is three hundred and fifty dollars ($350); deducting $37.50 from this $350, leaves three hundred and twelve dollars and fifty cents ($312.50), one-third of which belongs to the defendant, and amounts to one hundred and four dollars and twelve cents ($104.12) with interest thereon, amounting to six dollars and seven cents ($6.07) or a total of one hundred and ten dollars and nineteen cents ($110.19).”
“Whatever equity these copartners had in the North street property was lost to all of them in the farm transaction into which the equity in that property was traded, plaintiff losing as much as either of the other of his copartners.
“Defendant has no interest in lot eighty (80) block seventeen (17) of Sobvinski’s addition. Defendant claims a one-third interest in lot four (4) of Sunny Side addition to the city of Grand Rapids. I think no one without years of experience in dealing in equities in real estate would make a claim to any interest in this lot. The title to it is in plaintiff. He made the loan to the woman by which he acquired this property, and the transaction was so unconscionable that I should expect the plaintiff, if an honest man, not to desire to hold the title himself thereto, but the plaintiff has the title, and if in the transaction the title had gone to defendant, no court would aid the plaintiff in obtaining any interest therein. The title is in the plaintiff and so far as this court is concerned, will remain there, and the defendant should receive nothing by reason thereof, and I hold the defendant has no interest therein.
“The title to lot seventy-seven (77) of Coit Park addition is now in Jessie Vogel. Such conveyance being upon an arrangement and agreement between herself and the plaintiff here, her father. The equity in this property over and above the $1,100 mortgage belonged to the parties to this suit as copartners, and one copartner, the plaintiff, having conveyed or had it conveyed to his daughter, Jessie Vogel, and the value of such equity having been determined in this case and defendant having been upon the accounting therein given credit for, the title thereto should be quieted in said Jessie Vogel.
“I do not feel that there is a preponderance of the evidence on the part of the plaintiff as to the small loans he testified to, amounting to ninety-two dollars forty cents ($92.40), and I find that he has not established that claim against the defendant by a preponderance of the evidence.
“Defendant DeGolia is indebted under the evidence in this case to the plaintiff in the sum of one hundred and ninety-four dollars and fifty-five cents ($194.55) for rent; in the sum of four hundred and ten dollars and two cents ($410.02) for borrowed money; that ¡defendant owes the plaintiff the sum of one hundred ¡and fourteen dollars and eight cents ($114.08) on account of money received by him from Roy J. Bennett, or a total of seven hundred and eighteen dollars and sixty-five cents ($718.65).
/‘Plaintiff owes defendanx, as shown by the testimony in this case, the following sums: Upon the 'Allendale farm deal, and the transactions with Mr. and Mrs. Klant, the sum of twenty-six dollars and seventy-seven cents ($26.77); for rent from the Allen-dale farm and the commission on a team of horses and interest thereon, eighty-two dollars and ninety-nine cents ($82.99); and on the Bridge street rooming house property one hundred and ten dollars and nineteen eents ($110.19), or a total of two hundred and nineteen dollars and ninety-five cents ($219.95).
“Under this transaction, plaintiff is entitled to a decree against the defendant for the difference between seven hundred and eighteen dollars and sixty-five cents and two hundred and nineteen dollars and ninety-five cents, or four hundred and ninety-eight dollars and seventy cents ($498.70) with costs to be taxed. Plaintiff has some security for some of the money loaned by him to the defendant; this security will stand until the amounts so secured have been paid.
“The preliminary injunctions issued herein against defendant from prosecuting the case or cases commenced by him against plaintiff in the Kent county circuit court, will, by decree granted herein, be made perpetual. A decree may be prepared in conformity with this opinion.”

A decree was entered accordingly, which is affirmed, with costs to plaintiff.

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