text:
    CUSICK v. SPENCER.
    1. Mortgages — Foreclosure—Right to Redeem.
    Where the president of a bank, which had foreclosed a mortgage on complainant’s property for more than the amount legally due, agreed that if complainant would remit $100 to him before the period of redemption expired he would redeem the property for the amount legally due and sell it to complainant on contract, and complainant sent the $100 as agreed, which the president used with his own funds in purchasing the property, he could not, by refusing to furnish complainant information as to how much was actually due upon the mortgage, defeat her of her right to redeem, nor by paying more than was legally due the bank compel her to pay him a like sum. •
    2. Same — Amount Due — Knowledge of Agent.
    A claim that complainant’s husband, who attended to the business for her, knew the facts as well as the president of the bank, and that therefore complainant was bound to pay him the amount he paid the bank, is not well taken where, though complainant’s husband knew that payments had been made upon the mortgage and the amount of them, he was not apprised of the computation and just what made up the total amount for which the place was sold. .
    3. Same — Recognition of Complainant’s Title.
    Recognition by defendant president of complainant’s ownership of the property, and his advising with her about repairs, is a circumstance supporting her right to redeem.
    4. Same — Attempted Rescission by Complainant — Effect.
    An unsuccessful demand of the $100 after failure to agree as to the amount legally due upon the mortgage does not operate to defeat complainant of her right to redeem.
    5. Same — Laches—Defense—Availability.
    A delay of seven years is not such laches as will defeat complainant’s right to redeem, where neither of the defendants treated complainant frankly and openly, but withheld from her the true facts in regard to the payments made upon her mortgage, and, knowing of complainant’s claims, acted in open hostility and defiance thereof and have been in no respect misled.

      Appeal from Ionia; Lockwood, J., presiding.
    Submitted June 6, 1907.
    (Docket No. 31.)
    Decided September 20, 1907.
    Bill by Esther L. Cusick against Edwin R. Spencer and the People’s Savings Bank of Belding to declare a conveyance absolute in form to be a mortgage, and for an accounting. From a decree for complainant, defendant Spencer appeals.
    Modified and affirmed.

      R. A. & W. E. Hawley, for complainant.

      Morse & Loche, for appellant.
   Montgomery, J.

This bill is filed for the purpose of having a deed made by defendant bank to defendant Edwin R. Spencer declared a mortgage and for an accounting as to the amount due Spencer, and for the privilege of redeeming.

The complainant, prior to 1894, was the owner of the premises in question, consisting of the south half of lots 158 and 159 of the city of Belding. There were two mortgages upon the property, the first amounting to about $300, subject to which the mortgage in question in this case was given. This last-named mortgage was, on the 20th of October, 1894, assigned to defendant Spencer. At that date there was due upon said mortgage the sum of $575. Complainant, through her husband, who acted as her agent in all the transactions involved in this case, agreed with Spencer to turn the rent of the house over to him to apply on the mortgage, and authorized Spencer to collect it. Spencer did collect the rent and, after paying taxes and some expenses, had in his hands $57.66 to apply on the mortgage, and turned over to the bank the $57.66 to be by it applied on the mortgage, and on May 3, 1895, assigned the mortgage to defendant bank. The bank notified complainant that foreclosure proceedings would be taken if payment were not made. On August 1st complainant sent a draft to defendant bank for $50, and defendant Spencer paid to the bank $10.15 which he had retained in his hands but which should have been indorsed upon the mortgage. Complainant and her husband removed from Michigan to Wisconsin, and about this date defendant bank started foreclosure. The premises were bid in by the bank for the amount claimed to be due in the notice, together with interest and costs. No credit was given on the mortgage for the $57.66 rent, the $50 draft, and the $10.15 paid by Spencer, and the amount claimed to be due was excessive by the amount of $117.81.

In November, 1896, the defendant Spencer was approached in behalf of complainant with the request that some arrangement be made by which complainant might save her property. It should be stated that Spencer was the president of the defendant bank. On the 25th of November defendant wrote Mr. Cusick, complainant’s husband, as follows:

“ The time in which you can redeem the property expires some time next month. Mr. Post informs me that you would like to make one more effort to save the property. We have a chance to sell it as soon as we get possession so as to make a pretty good thing off of it, I think, but if there is anything to be made or saved out of it, it seems to me as if you ought to be the one to have the benefit.

“ Now, I will make you this proposition if accepted before the redemption runs out: I will take up the first mortgage and collect the rents and send you receipts twice a year to apply on contract for sale from me to you. I will accept $100 as first payment and $15 per month thereafter. This you see will reduce the amount to where it would be safe for any one to carry in a short time.”

On the first of December Mr. Cusick wrote Spencer asking for some information in regard to foreclosure. This was evidently before the receipt of Spencer’s letter of the 25th. On the 2d of December Cusick wrote in reply to the letter of the 25th:

“ Yours of the 25th was received this afternoon. Was not mailed until yesterday. I wrote you a letter, not hearing from you, and explained to you. Please answer that immediately and • give me amount of interest, principal and costs, and in full what I am to pay. I do not understand what you mean by payment of $15 per month. Does it include the rent ? I will make up the $15, but it may come quarterly as my daughter does not draw her pay every month, and so would have to pay two or' three months at a .time. Will that be satisfactory ? ”

On the 14th of December Spencer wrote Cusick as follows:

“The amount of the claim of the People’s Savings Bank on your place here is $692.05, December 31st, 1896. I do not know just what the first claim is, perhaps you do. Now, if you will send me the $100, as you suggested, I will go and take up the first claim and give you a contract for a deed on the terms you made, $15 per month quarterly, you to have the rent applied on the amount.. You may send the money to me or the bank and we will immediately receipt for the same. If you accept this proposition, let me know at once.”

On the same day Cusick had written Spencer the following letter:

“ I have written you three times but no reply as yet, and I am getting very anxious to hear from you, and to have the contract for that place. I thought that I made it plain to you what I could do, and am waiting in great suspense, as I do not know when the time of redemption runs out, and you did not say only some time this month.”

On the 15th of December, Cusick wrote to Spencer as follows:

“Yours of the 14th is received, and contents noted, and in looking over your statement I cannot see how you make it $692.05. The principal was $500, and when I looked over one year ago last June there was somewheres about $25 interest due after paying that $10 house rent to Mr. Reed, and then I sent to Mr. Reed from Lowell, in draft, the last of July or the first of August, 1895, $50. You remember that I told you and Mr. Holmes that I would when you were in the bank, to keep the bank from foreclosing. And that would, as I had in my mind then and now, reduce it to about $485, and the interest from then till December 31, 1896. And the expense of foreclosing is what would be added to the amount due. I suppose it cost about $50 to foreclose, and I cannot see how you make it $692.05. You must be mistaken somewhere.

“ I wish you would look this all over and give me the dates of payments made and interest and otherwise, and what it cost to foreclose, and then I can see how it is. I only ask to have it all clear and satisfactory. But you can see by the way I state it, there is quite a wide difference, and if you can give me the figures and the dates of payments made on note, and the cost of foreclosure, it will show for itself.”

And on the 19th of December Cusick wrote Spencer, enclosing him $100, and requested him to send statement-of amount and indorsements made on note by payments and interest, cost of foreclosure, etc., and asked that the contract be made in the name of Eunice E. Cusick, complainant’s daughter, from whom complainant had made an arrangement to borrow the money to make the initial payment to Spencer.

On the 21st of December, 1896, Spencer again wrote as follows:

“In answer to yours of recent date I will say that I will take up all claims against the property, hold the deed in my own name and contract to deed to you free and clear when you shall pay me the amount actually paid by me with interest until paid at 7 per cent. The amount is as stated and I enclose you statement of bill of expense. You have or should know what the other claim is, as soon as I pay it will send'you the amount if we deal.

“You can make a contract as well as I, as I am a very busy man and my time is all employed. The amount against the property has got to be paid by some one with accrued interest until paid. You can make the epntract as we have proposed, one hundred dollars down and fifteen dollars a month until all legal claims against the property is fully paid with interest on all amounts unpaid at the rate of 7 per cent, per annum to be paid at the end of the year or you can so arrange as to pay the interest with each monthly payment. I see nothing which you cannot fully understand excepting the exact amount to be paid, and I do not see how that can be determined until all the legal claims are paid. This will be the amount due the bank with interest till I sign the contract with you. The amount due on the first claim and the taxes now due. I know how you feel about this matter to see so much money as you have put into the place go, but cannot go to much further time and expense in trying to help you save it, so if you wish to deal make such a contract as I have suggested and send with draft with $100 to one of the banks or some one here. Make the amount to be paid all legal claims against the property up to the date of the contract.”

This was in answer to the letter of the 19 th from Cusick requesting a statement of the amount and indorsements made on the note by payments and interest, cost of foreclosure, etc.

On the 24th Cusick wrote in reply the following letter:

“Your statement of cost of sale is all clear, but I do not see where I have been credited with the amount that I have paid on interest to Rev. Shelly, and the rent paid to you, and the $50 sent to the bank.

“ The amount of mortgage was $500, and I paid to the Rev. Shelly $45 or $50 on interest, and you had rent on house that amounted in all, I think, to about $66, and I sent to the bank $50 from Lowell to apply on mortgage; and, if you have given me credit for all of this, which, of course, you can see that I have paid, I do not make it as you do. If I am credited with what I have paid, that is all I ask. And, if you figure up the interest on the note and mortgage for four years (I think the mortgage was drawn in October, 1891), and the first was paid in full and then what cost has been, etc., and give me credit as I paid, is all that can be asked. And if you had sent me the statement separate of interest accrued, and the amount I paid, I could see where we disagree.

“You take the amounts that I have paid in and see what it amounts to, and then the amount of interest that accrued, and I think you will find up to the time of the foreclosure I was up with my interest on your mortgage of $500, and send me that statement, with the one on first mortgage, and you make out contract as you state, and collect the rent, and apply on payments, and it will be all right.”

On the 7th of January Spencer wrote Miss Ousick that he had been waiting to get the amount of the first mortgage, and that he would, as soon as he learned that, send her the contract. On the 30th of January the contract was sent forward to Miss Ousick. On the 27th of February Ousick again wrote to Spencer asking for information in particular as to the amounts due upon the mortgage. Again on the 8th of March Spencer replied, giving the amount of costs only, but made no attempt to go into detail as to the amount of payments. On the 25th of January the land had been conveyed by the defendant bank to Spencer for the expressed consideration of $1,150, and Spencer was insisting that he had paid out in the transactions $1,149.52. Miss Ousick refused to sign the contract, evidently because of inability to agree as to the amount properly chargeable against the property, and finally demanded back the $100 which she had paid, which was, however, not refunded to her.

Complainant then employed Mr. Fallass, an attorney at Grand Rapids. He also demanded the repayment of the money and undertook to get some satisfaction out of the bank but succeeded in neither, and the matter ran •along until 1904, when Mr. Ousick again came to Belding and tried to get a settlement, and failing in that this bill was filed, when for the first time, on the trial, it was conceded that the complainant’s property had been charged with a greater sum in the foreclosure proceedings than was due to the bank, but it was insisted, first, that the agreement between' complainant and Spencer was that he should pay the bank its claim and that therefore he was not in fault in paying the full amount for which the property was sold, and, secondly, that, inasmuch as the parties refused to sign the contract, no binding contract existed between complainant and defendant giving any right to the complainant to redeem from the sale.

When the relations of the defendant Spencer to the bank are considered, and the correspondence construed in connection with it, we are fully satisfied that the parties contemplated and agreed that Spencer should redeem the property for complainant by paying all legal claims and none other. This, agreement was made before the time for redemption from the foreclosure. sale had expired. Complainant had remitted $100 in cash to be applied upon this contract, and the only reason that the written contract was not signed between the parties was that defendant Spencer ignored the requests of complainant’s husband for a statement of the details of the transaction, with which he in part, at least, was familiar, and all of which appeared upon the books of the bank of which he was president, and to which books he is shown to have had access. His agreement was to advance the moneys to pay these claims against the property, and for this purpose a por. tion of the money, to wit,$100, was putin his hands and used by him for that purpose. This was money advanced by complainant, and to permit defendant to assert that by using this money with his own to take title over to this property, and then refusing to furnish the information upon which a written contract could be based, he has succeeded in defeating complainant of all her equities, is to permit him to take advantage of his own wrong or neglect. It is not necessary to assert that this information was fraudulently withheld by Spencer. It is obvious that it was arbitrarily withheld by the cashier of the bank, and defendant Spencer as well. He owed a duty to furnish this information to complainant and he ought not to be permitted to profit by his failure to do so.

It is claimed that complainant’s husband knew the facts as well as Spencer. This is not exactly true. He did know that payments had been made and about the amount of them; but of the computation and just what made up the total amount he was. not apprised, as he had the right to be. Furthermore, defendant Spencer recognized complainant’s ownership of the property. He for a time sought to advise with her, and stated that with relation to repairs he would be governed largely by her wishes. We are satisfied that under these circumstances the complainant had a right to redeem upon payment of the amount of the mortgage. Sowles v. Wilcox, 127 Mich. 166.

It is insisted that complainant has lost her right to redeem because complainant’s daughter, Eunice, endeavored to get back the money she had furnished, and because complainant acting through her counsel demanded repayment of the $100 paid to Spencer. Neither the bank or Spencer parted with any money. They were not deceived or misled by these demands. Their legal relations were not changed in any way, there is no element of estoppel, nothing more than an unsuccessful attempt to adjust a difference. *

It is also urged that the complainant has been guilty of such laches as should defeat her remedy. Assuming that this defense is open upon the pleadings, we think the complainant has been guilty of no such laches as should defeat her remedy. Neither of the defendants treated complainant frankly and openly. They withheld from her the true facts in regard to the payments, and while complainant’s husband may have known that she had not been credited with all of her payments he was not aware of the facility by which proof could be made by reference to defendant’s books. Moreover, defendants, knowing the claims of complainant, acted in open hostility and in defiance to her rights and have been in no respect misled. It was known by defendants from the first that there was no acquiescence in the position taken by defendants, and as the delay has worked no injury to the defendants which cannot be redressed, we think this defense also should fail.

It seems that the defendant has built a house upon the adjoining property so that a few feet of it rest upon the property in question. By the decree below he was permitted to remove this. He was also permitted to recover the amount expended for repairs and improvements made to the house and premises, so far as were necessary and reasonable. We think it may be assumed that such repairs as were made in good faith were necessary, and defendant should be allowed a reasonable expenditure for them.

With this modification, the decree of the court below should be affirmed; with costs of both courts to complainant.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    STARKWEATHER v. CHATFIELD.
    Drains — Establishment—Petition -y Signers — Freeholders — Purchasers on Contract.
    Since by the common law and by the statute (section 8787, 3 Comp. Laws) estates of inheritance are freehold estates, and the estate of the vendee in a land contract in possession is an estate of inheritance, such a vendee is a freeholder, and as such entitled to sign an application for a drain under section 4319, 2 Comp. Laws.
    Appeal from Lenawee; Chester, J.
    Submitted June 7, 1907.
    (Docket No. 52.)
    Decided September 20, 1907.
    Bill by Ira Starkweather and others against Willis Chatfield, drain commissioner of Lenawee county, to restrain the construction of a drain. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      B. L. Hart and Bird & Sampson, for complainants.

      Theodore M. Joslin, for defendant.
   Ostrander, J.

Eleven persons signed the application for the drain (2 Comp. Laws, § 4319), ten of them being freeholders if the vendee in a land contract, in possession, is a freeholder. At the common law (1 Bouvier’s Dictionary, p. 693, tit., Estate of Freehold) and by statute (3 Comp. Laws, § 8787) estates of inheritance are freehold estates. The estate of the vendee in a land contract, in possession, is an estate of inheritance. Wing v. McDowell, Walk. Ch. (Mich.) 175; House v. Dexter, 9 Mich. 246; Fitzhugh v. Maxwell, 34 Mich. 138; Bowen v. Lansing, 129 Mich. 117 (57 L. R. A. 643). See, also, City of Marquette v. Land Co., 132 Mich. 130.

The decree is affirmed, with costs to defendant.

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


author: Carpenter, J.

text:
    HILLIKER v. FARR.
    1. Intoxicating Liquors — Civil Damage Law — Liability or Furnisher.
    In an action under the civil damage law (section 5398, 2 Comp. Laws), against a saloon keeper and his bondsmen, the question whether the saloon keeper received pay for liquor shown to have been furnished in his saloon is immaterial.
    •2. Same — Sale or Saloon — Liability or Seller’s Bondsmen.
    Where a saloon keeper sold his saloon and gave the buyer a power of attorney authorizing him to conduct the saloon business as the seller’s agent, such authority being a mere pretense to enable the buyer to carry on the business unlawfully under the seller’s license, the seller’s bondsmen are not liable under the civil damage act for unlawful sales made by the buyer.

      3. Same — Colorable Sale.
    Where a person making an unlawful sale of liquor in a saloon was a bona fide agent of the owner of the saloon, and a sale of the business to the agent was a mere pretense to relieve the owner’s bondsmen from responsibility, such bondsmen are none the less liable.
    4. Same — Evidence—Character of Transaction.
    In an action against a saloon keeper and his bondsmen for an unlawful sale made by one to whom it is claimed the saloon was sold and a power of attorney given to facilitate conducting the business under the seller’s license, evidence tending to show that the transaction was a bona fide sale and not the creation of an agency is admissible, though it tends to contradict the power of attorney.
    5. Witnesses — Self Crimination — Effect.
    Where, in an action against a saloon keeper and his bondsmen for an unlawful sale made by one to whom it is claimed the saloon was sold and a power of attorney given as a mere sham to facilitate conducting the business under the seller’s license, the court ordered the alleged buyer to produce the power of attorney, a claim that he was thereby compelled to incriminate himself is untenable, as the only bearing the power of attorney would have in case he were informed against for running a saloon without a license would be to furnish evidence of his innocence.
    6. Intoxicating Liquors — Civil Damage Law — Action — Evidence — Other Unlawful Sales.
    In an action against a saloon keeper and his bondsmen under the civil damage law for an unlawf ul sale of liquors, it is error to allow proof by plaintiff of other unlawful sales to other persons on the day in question.
    7. Same — Argument of Counsel — Prejudice.
    A remark by counsel in argument that “he had been in the practice of law for a good many years and this is the first case he ever knew where counsel for liquor dealers ask the jury to go by the evidence,” is improper and prejudicial.
    8. Same — Damages—Evidence.
    A mother suing under the civil damage-law for the death of her son is not entitled to show that her husband paid the doctor’s bills and funeral expenses of decedent occasioned by his injury.
    Error to Osceola; Rose, J.
    Submitted June 10, 1907.
    (Docket No. 62.)
    Decided September 20, 1907.

      Case by Marie Hilliker against Ray A. Farr, principal, and Reuben B. Farr and Olof .Ingstrom, sureties, and James E. Denoyer, principal, and Clause Freese and Albert Miller, sureties, and Fred Noack, under the civil damage act. There was judgment for plaintiff against defendants Freese, Miller, and Noack, and they bring error.
    Reversed.

      Stephen H. Clink and B. Newton Savidge, for appellants.

      Charles A. Withey, for appellee.
   Carpenter, J.

Harland Hilliker, plaintiff’s son, died from injuries received in a drunken brawl. Plaintiff, who was being supported by wages earned by her son, brings this suit to recover damages, claiming that his death resulted from liquor furnished him by defendant Noack, who kept a saloon inDighton, Osceola county, and Ray A. Farr, who kept a saloon in Tustin, Osceola county. She conr tends that Noack was operating the saloon as the agent of defendant James E. Denoyer, and she, therefore, joined as defendants said Denoyer and the sureties on his bonds, defendants Freese and Miller. She also joined as defendants Reuben B. Farr and Olof Ingstrom, who were the sureties on the bond of defendant Farr. Denoyer was absent from the State; was not served with process and did not appear, and, therefore, is not concerned in the result of this suit. A verdict and judgment were rendered in favor of Farr and his sureties and against Noack and the sureties on the bond of Denoyer. These last-named defendants appeal to this court and ask a reversal of the judgment for several reasons:

First. Witnesses for plaintiff testified that Noack carried in an adjoining pool room, where Hilliker and his companions were playing pool, a tray of liquor, and that Hilliker drank a portion of this liquor. It is now contended that Noack is not responsible for the consequences, because the testimony does not show that he received pay for said liquor. We think the jury might have drawn the inference that Noack furnished the liquor under a promise or expectation of being paid therefor, and even though he did not, he would be liable. The statute creating the plaintiff’s right of action (section 5398, 2 Comp. Laws) reads:

“Every * * * parent * * * who shall be injured in * * * means of support * * * by reason • of the selling, giving or furnishing any spirituous, intoxicating, fermented of malt liquors, to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury.”

People v. Bird, 138 Mich. 31 (67 L. R. A. 424), relied upon by defendant’s counsel, has obviously no application. That was a criminal case based upon facts very different from those in the case at bar, and it involved the construction of an entirely different section of the statute."

Second. Defendant Noack was made a witness by the plaintiff. He testified that he bought the saloon and its contents from Denoyer, the former proprietor; that he received from Denoyer a power of attorney authorizing him to conduct the saloon business as Denoyer’s agent; that he used the red card (the tax receipt) of Denoyer and purchased goods in Denoyer’s name. There was no evidence tending to show that the sureties on Denoyer’s bond had any knowledge of the transaction between their principal and Noack. Appellants contend that this testimony did not warrant the trial court in submitting to the jury the question of the liability of Denoyer’s sureties. Appellee contends that it justified the trial court in directing a verdict against said sureties. We differ from both of them. We deny each of the above contentions. From the above testimony the jury were warranted in reaching either of the two following opposed conclusions: First, that there was an actual sale by Denoyer to Noack, and that authority to act as his agent was a mere pretense to enable the latter to carry on his business unlawfully under the license of the former; or, second, that Noack was a bona fide agent of Denoyer and that no sale was made, or if made, it was a mere pretense to relieve Denoyer’s sureties from responsibility. It is clear that if the jury reached the second conclusion, Denoyer’s sureties were responsible. It is equally clear that if they reached the first conclusion, they were not responsible, and the verdict should have been in their favor. This is settled by Mathews v. Garman, 110 Mich. 559. It is true that Mathews v. Garman differs from the case at bar in this particular, viz., there the vendor, did not authorize his vendee to carry on the business as his agent. Whoever insists that this difference is material must contend that a principal has unlimited power to extend the obligations of his sureties. He has no such power.

In his charge to the jury, the trial judge fully recognized these principles, but he disregarded them in certain rulings when testimony was being introduced. For instance, on the cross-examination of Noack, he declined to permit defendant’s counsel to obtain answers to the following questions, viz.:

“ Were you in fact a true agent of Mr. Denoyer after August_ 2d, 1904 (August 2d, 1904, was the date of the alleged ’sale)?

“ What did you do with the proceeds of that saloon after the second day of August, 1904 ?”

These rulings were erroneous. It must be assumed that they prevented defendants, from introducing testimony tending to prove that the transaction between Noack and Denoyer was a sale and not the creation of an agency. In reaching the above conclusion, we deny the proposition asserted by plaintiff’s counsel, viz., that the proposed testimony was inadmissible because it tended to contradict the power of attorney heretofore mentioned. Denoyer’s sureties clearly had a right to' prove, if they could, that the power of attorney was a mere sham. In this connection we notice the claim of appellant that the ■court erred in not permitting one Cole to testify “to what was said by the parties ” at the time he (Cole) loaned Noack $25 to pay Denoyer on this deal. We cannot say from the record that Denoyer was a party to this conversation. For the purpose of a new trial which must take place, we think it proper to say that if he was, the excluded testimony was admissible.

Third. It is contended that Noack was compelled to incriminate himself when by the order of the trial court he produced the power of attorney heretofore referred to. The ground upon which it is contended that this document incriminated Noack is stated in the brief of defendants’ counsel as follows:

“ Suppose Noack had been immediately thereafter complained of for running that saloon without a license. Would not this power of attorney have an important bearing upon the trial of that cause ? ”

We answer that in such a case its only bearing would be to furnish evidence of Noack’s innocence. It would have no tendency whatever to prove his guilt. Indeed, he is guilty only upon the assumption that the power of attorney is a mere sham. We think there was no error in the ruling under consideration. .

Fourth. Complaint is made because the trial court permitted plaintiff to prove that Noack made an unlawful sale of liquor to a third person on the same day that it is alleged he furnished liquor to Hilliker and his companions. We think this complaint is well founded. This testimony had no legitimate bearing on any issue involved in the case. Its only tendency was to'create a predjudice in favor of plaintiff. It cannot be said that if this testimony had been excluded the jury would have rendered a verdict in plaintiff’s favor. In this connection it is proper to notice a remark made by plaintiff’s counsel in his argument to the jury, viz., he said that “ he had been in the practice of law for a good many years and this is the first case he ever knew where counsel for liquor dealers ask the jury to go by the evidence.” It is scarcely necessary to say that this remark was improper and prejudicial. It should not have been made.

Fifth. Plaintiff was allowed to prove that her husband paid the bills (the doctor bills and funeral expenses) occasioned by her son’s injury and death. While it is doubtful if defendants were harmed by the admission of tbia testimony, it would have been proper to exclude it. It had no bearing on any issue in the case.

Other complaints are made. They have received our careful consideration. Some of them are determined by the reasoning of this opinion. Most of them are entirely lacking in merit. None of them raise important questions, nor questions likely to arise upon a new trial. They are, therefore, not discussed.

The judgment is reversed, and a new trial ordered.

McAlvay, O. J., and Grant, Hooker, and Moore, JJ. concurred.


text:
    MOFFET v. SEBASTIAN.
    1. Bills and Notes — Joint Note — Action Against Joint Maker —Verdict—Harmless Error.
    In an action by a maker of a joint note against his co-maker to recover his proportion of the amount paid thereon, plaintiff having made payments at different times, defendant is not injured by the trial court requiring the jury to state in their verdict the several sums allowed plaintiff and their dates and amounts.
    2. Pleading — Bills oe Particulars — Proof — Variance — Effect.
    Where, in an action by a joint maker of a note against his comaker, the bill of particulars charges that the joint obligation was discharged by the payment of the entire amount due, recovery by plaintiff of advances consisting in part of money and in part of property made under a compromise agreement whereby the holder of the joint obligation accepted less than its face value, cannot be complained of by defendant, being favorable to him.
    3. Saving Questions for Review — Denial of New Trial — Necessity of Exception.
    Error in denying a motion for a new trial cannot be reviewed in the absence of an exception to such denial.
    4. Appeal and Error — Necessity of Assignments.
    Errors unsupported by assignments of error cannot be reviewed. '
    Error to Berrien; Coolidge, J.
    Submitted June 11, 1907.
    (Docket No. 67.)
    Decided September 20, 1907.
    Assumpsit by A. H. Moffet against John Sebastian for his proportion of a joint promissory note. There was judgment for plaintiff, and defendant brings error.
    .Affirmed.

      Humphrey 3. Gray, for appellant.

      Lawrence G. Fyfe and Waters & Waters, for appellee.
   Carpenter, J.

In 1887 the parties to this suit made a joint purchase of stock in a Kansas land company. They raised the money for this investment by giving a joint note for five thousand dollars. Plaintiff claims that he paid this note; and he brings, this suit to recover the amount thereof justly chargeable to-defendant. He obtained a verdict and judgment in the circuit court.

Defendant asks us to reverse that judgment for several reasons:

First. He contends that the tria_ court erred in requiring the jury to state in their verdict tho several items allowed plaintiff; their dates and amounts. (Plaintiff discharged the notes by payments at different times.) If this was error, it was not reversible error; for it did not injure defendant.

Second. Included in the amount recovered were certain advances — consisting in part of money and in part of property — made under a compromise agreement whereby the holder of the joint obligation accepted less than its face value. The contention is now made that none of these advances could be recovered because they were not specified in plaintiff’s bill of particulars. It is charged in the bill of particulars that the joint obligation was discharged by the payment of the entire amount due. It thus appears that the bill of particulars overstates the amount advanced by plaintiff for defendant and does not state that part of that amount was in property and not in money.

The complaint of defendant requires us to consider only one of these discrepancies, viz., the statement in the bill of particulars that plaintiff paid an amount larger than he actually did pay. This difference was favorable to defendant, and he cannot complain of the variance. Collins v. Beecher, 45 Mich. 436.

Third. It is contended that defendant did not authorize the making of the compromise agreement under which the advances just mentioned were made. It is sufficient to say that this was a question which the court properly submitted to the jury; for there was evidence tending to prove that defendant did authorize the making of said agreement.

Fourth. ■ It is contended that the court erred in denying defendant’s motion for a new trial. No exception was taken to this denial and we cannot consider it. Pearl v. Township of Benton, 136 Mich. 697.

Fifth. Other errors are alleged. Some of them are based on no assignment of error; some of them are based on an erroneous construction of the court’s charge. None of them are meritorious.

Judgment affirmed.

McAlvay, O. J., and Grant, Hooker, and Moore, JJ., concurred.


author: McAlvay, C. J.

text:
    CUBA COLONY CO. v. KIRBY.
    1. Corporations — Promoters—Acquisition op Stock — Fraud.
    Where the promoters of a corporation represented that they owned a contract to purchase certain land at the price of $60,000, on which they had paid $20,000, and proposed to transfer it to the corporation for $20,000 in stock, the corporation to pay the remaining $40,000 on the contract, which proposal was accepted, and the corporation organized with a capital of $60,000, $40,000 of which was paid for the land, and $20,000 in stock to the promoters, and the price of the land was in fact $40,000, on which the promoters had paid nothing, they were not entitled to retain their stock, and were accountable to the corporation for moneys received from the sale of such stock.
    2. Same — Relíanos on Representations.
    That some of their associates doubted the truth of the promoters’ statements is immaterial, where they were finally led by the promoters to resolve the doubt in their favor, and act upon the assumption that the false statements were true.
    3. Same — Equity—Maxim—Clean Hands — Application.
    The maxim requiring a complainant in equity to come with clean hands is not applicable on the ground that after its acquisition of the land complainant corporation issued statements misrepresenting its value, since, with the promoters, who were chiefly responsible for the false statements, out of the corporation, it is not to be presumed that such statements will continue to be issued or that any further harm will come from those already issued.
    4. Same — Promotion Expenses — Allowance.
    Promoters are not entitled to an allowance for promotion expenses where they represented to their associates that there was to be no such allowance.
    5. Same — Cancellation of Stock — Bona Fide Holder. ■
    Where stock in a corporation fraudulently obtained by a promoter has been transferred to a good faith holder as security for a debt, such holder has a right to retain it as such security subject to the right of the corporation to pay the debt and be subrogated to such holder’s rights against the debtor.
    Appeal from Calhoun; Hopkins, J.
    Submitted June 11, 1907.
    (Docket No. 79.)
    Decided September 20, 1907.
    Bill by the Cuba Colony Company against Adolphus D. Kirby, Charles H. Howard, and Harriet E. Howard for the cancellation of certain shares of stock on the ground of fraud. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Francis A. Kulp and Stewart & Jacobs, for complainant.

      Warren H. Woodbury and Lodge, Trevor & Brown, for defendants.
   McAlvay, C. J.

This is a suit in equity brought for the purpose of procuring the cancellation of certain of complainant’s shares of stock held by defendants upon the ground that their issuance was procured by fraud. Complainant obtained a decree in the circuit court. Defendants appeal.

The material facts are as follows: In 1902, one Don Carlos Batchelder and defendants Adolphus D. Kirby and Charles H. Howard obtained an option or contract for the purchase of a tract of land in Cuba. They were to pay for this land the sum of $40,000. When they secured this option it was their plan to promote a company to whom it should be transferred. To enable them to make said transfer at an advanced price they had said contract of sale so drawn that it appeared that the purchase price was $60,000, of which $20,000 had been paid; whereas nothing had been paid and the purchase price was, as above stated, $40,000. They then returned to their home in this State and induced several gentlemen to unite with them in the formation of a corporation for the purchase of said land, representing to them that it was of great value; that they would turn it over to the corporation at what it cost, which was $60,000; that they had already advanced $20,000 in cash toward its payment, for which they would take stock in the corporation to be formed. Accordingly, a limited partnership association was formed, called the Cuba Colony Company, Limited. Its capital stock was $65,000, of which amount Batchelder, Howard, and Kirby subscribed for $20,000, and their associates $45,000. The $45,000 subscribed by said associates was paid in cash. The $20,000 subscribed by Batchelder, Howard, and Kirby was never paid, otherwise than by the relinquishment of their interest in said option or contract. Soon after its organization, said Cuba Colony Company, Limited, acquired title to the Cuba property, in accordance with the scheme of its promoters. Subsequently these same parties organized' an association, called the Cuban Fruit Company, Limited, for the purpose of developing a certain portion of the property. They allotted the stock in this latter company to themselves in the same proportion as they held the-stock of the Cuba Colony Company, Limited.

In 1904 tney made a plan for the organization of a new corporation which should succeed to all the rights of the two former associations, and to receive its stock in exchange for the stock formerly held by them. In accordance with this plan, the complainant corporation, the Cuba Colony Company, was organized. The new corporation, it is to be inferred, succeeded to all the rights of the two old ones. All the stockholders in the old companies surrendered their stock, and, with the exception of Batchelder, defendants Kirby and the two Howards (defendant Harriet E. Howard holds as security certain Stock assigned her by her son, defendant Charles H. Howard), they received stock in the new corporation in exchange therefor. At this time knowledge of the actual cost of said property was acquired, and, therefore, the corporation refused to issue stock to defendants and to Batchelder. Soon thereafter this bill was filed. Batch-elder is not made a party thereto, because he relinquished his stock. The circuit court rendered a decree canceling the stock in the names of Charles H. Howard, Harriet E. Howard, and Adolphus D. Kirby, and compelling the latter to repay the sum of $3,000 which he had obtained by selling a portion of his stock.

Defendants ask us to reverse that decree for several reasons: -

First. They urge that Batchelder, Kirby, and Howard occupied no fiduciary relation toward complainant when they purchased this property, and, therefore, complainant is not entitled to relief. It may be conceded that, at the time the purchase was made, there was no such fiduciary relation; but complainant’s right to relief does not depend upon the existence of the relation at that time. A fiduciary relation did exist at the time the corporation was formed and the property transferred. At that time Batchelder, Kirby, and Howard were promoters of the corporation, and towards it they were bound to act in good-faith. The'law governing this case is, in our judgment, correctly stated in Lydney & Wigpool Iron Ore Co. v. Bird, L. R. 33 Ch. Div. 85. The material facts in that case differ from the. facts in this case in no particular favorable to defendants. We quote from that opinion. (The reader should understand that the defendant James Bird referred to in said opinion had done precisely what the promotors in the case at .bar had done.)

“ It is not correct to say that James Bird was theagent of the company when it did not exist; nor is it much less objectionable to talk of his being in a fiduciary relation to the company before the company had any existence. Moreover, to say that James Bird was a promoter of the company and therefore liable to account to it is calculated to mislead, for the word ‘ promoter ’ is ambiguous and it is necessary to ascertain in each case what the so-called promoter really did before his legal liabilities can be accurately ascertained. In every case it is better to look at the facts and ascertain and describe them as they are. In the present case James Bird procured the company to be formed and to be managed in such a way as to transfer from the moneys of the company to himself the sum of £10,800 without informing the company of that fact. The company were told that they had to pay £100,000 for the property but they did not know that of that sum £10,800 was to go into the pocket of the man who had got the company up and who had in fact increased the purchase money in order to get that £10,800. Under these circumstances he cannot retain the sum so got. Although not an agent of the company nor a trustee for it before its formation, the old familiar principles of the law of agency and of trusteeship had been extended and very properly extended to meet such cases; and using the word ‘promoter ’ to describe a person acting as James Bird did, it is perfectly well settled that a promoter of a company is accountable to it for all moneys secretly obtained by him from it just as if the relationship of principal and agent, or of trustee and cestui que trust had really existed between them and the company when the money was só obtained. Nor in such a case is it necessary for the company to rescind the whole transaction of which the payment by the company of the money,in question is found to be part.”

See, also, Emma Silver Mining Co. v. Grant, L. R. 11 Ch. Div. 918; Erlanger v. Phosphate Co., L. R. 3 App. Cas. 1218; Simons v. Mining Co., 61 Pa. 202;, Plaquemines Tropical Fruit Co. v. Buck, 52 N. J. Eq. 219.

Second. Appellants insist that the false representations, made by the promoters were not credited by their associates, and, therefore, complainant is not entitled to relief. We answer this contention by saying that while several of the associates did doubt the truth of these false statements, they were finally led by said promoters to resolve said doubt in their favor, and act upon the assumption that said false representation was true.

Third. Appellants also contend that the maxim, “He who comes into equity must come with clean hands,” debars complainant from relief, because after the acquisition of the Cuban property both it and its successors issued statements misrepresenting its value. Now that the promoters — who were largely responsible for the issuance of these false statements — have no longer any relation to the corporation, we do not believe that such statements will continue to be issued or that harm will come from those that have been issued. It is not to be assumed, therefore, that the decree in this case will be so used as to. enable complainant to perpetrate a fraud similar in kind to that of which it complains. Under these circumstances the maxim relied upon by the defendants does not apply.

Fourth. It is urged that in any event some allowance should be made to the defendants for promotion expenses. In cases somewhat similar to this such allowance .has been made. See Emma Silver Mining Co. v. Grant, L. R. 11 Ch. Div. 918; Lyndey & Wigpool Iron Ore Co. v. Bird, L. R. 33 Ch. Div. 85. The case at bar is, however, to be distinguished from those cases by this important circumstance not heretofore alluded to, viz., the promoters in this case represented to their associates— and their associates believed that representation — that there was to be no allowance for promotion expenses. Under these circumstances they are not entitled to them.

Fifth. It is contended that defendant Harriet E. Howard was a bona fide holder of the stock standing in her name and that that portion of the decree cancelling it is erroneous. This stock is held by Mrs. Howard as collateral security for an indebtedness of $1,475 owing her by her son, defendant Charles H. Howard. It is established by the testimony that Mrs. Howard had no knowledge of the fraudulent conduct of her son and took this stock in good faith. It is insisted, however, that inasmuch as the son was her agent, his knowledge will be imputed to her. In making the arrangement whereby this stock was taken as security, the son was not the mother’s agent. Then he was acting for himself. His knowledge would not be imputed to her.

It is also insisted that Mrs. Howard is not entitled to hold this stock, because both she and her son in their testimony expressed confidence that the indebtedness secured thereby would be paid in any event. This is an argument utterly unsound. Mrs. Howard holds this stock legally as security for the payment of said indebtedness. To take it from her lessens the certainty of payment, impairs her security and deprives her of valuable property rights. She has, therefore, a right to continue to hold it. The decree of the circuit court must be so modified as to protect that right. It should at the same time give complainant the right to pay said indebtedness and cancel said stock, and, in case of said payment, to recover the amount thereof from defendant Charles H. Howard. As thus modified, the decree should be affirmed, with costs against defendants Kirby and Charles H. Howard. Defendant Harriet E. Howard is, entitled to costs in both courts.

Carpenter, Grant, Hooker, and Moore, JJ., concurred.


text:
    CITY OF MUSKEGON v. HANES.
    1. Hawkers and Peddlers — What Constitutes Peddlinq.
    An ordinance prohibiting hawking and peddling without a license is violated by going without a license from door to door and leaving articles on approval to be returned or paid for at a later date to anbther servant of the owner.
    2. Same — Interstate Commeroe.
    There is no interference with interstate commerce in requiring a license of one who distributes articles of merchandise, shipped here in bulk from another State, to be returned or paid for at a later date to an associate of the distributor.
    Error to Muskegon; Sessions, J.
    Submitted June 12, 1907.
    (Docket No. 86.)
    Decided September 20, 1907.
    Mary A. Hanes was convicted of peddling without a license, and sentenced to pay a fine of $50 or in default thereof to 30 days’ imprisonment in the county jail.
    Affirmed.

      Gross, Lovelace & Loss, for appellant.

      James E. Sullivan, for appellee.
   Carpenter, J.

We adopt the opinion of the learned trial judge — Judge Sessions — rendered in disposing of this case in the circuit court. That opinion reads as follows :

“By stipulation in open court a jury was waived by the defendant and -the case submitted to the court for determination.

“ The facts in this case are undisputed. It appears from the evidence that the Raydith Manufacturing Company on the first day of last July was a corporation organized under the laws of the State of Illinois, and manufacturing perfumes in the city of Chicago in that State; that the defendant was in the employ of that corporation and was working for it in the city of Muskegon on that date; that prior to coming to the city of Muskegon, and on or about the 18th or 20th day of June, the defendant was working in Grand Rapids in this State, and that from June 18th or 20th until the first day of July, and perhaps a day or two thereafter, she, together with others, associated with her and under direction, was working for this Illinois corporation in this city. When the defendant came to the city of Muskegon she brought with her the goods which she was distributing, or a portion of them; she brought with her a sufficient stock to enable her to do business for a time, and whenever the stock needed replenishing she had the goods shipped from this corporation in the city of Chicago to her in the city of Muskegon, either by express or by freight; that before any goods were distributed by her or her associates such goods had been shipped to the city of Muskegon and were within this State. It appears also that the defendant had her expenses paid' by the Raydith Manufacturing Company, and in addition thereto she was paid by that corporation a commission upon all of the goods that were sold or disposed of by herself or her associates. There came with her to the city of Muskegon two others, whom she terms canvassers, and the method of their operation was for the defendant and the two canvassers, who were acting under her direction and orders, to go about the city of Muskegon from house to house and leave packages of perfumery, the packages or cases containing ten small bottles of perfumery, preferably these packages of perfumery were left at houses where there were children, the defendant or one of the canvassers under her direction informed the householder at the time of leaving the package of perfumery that the price would be so much, that the householder or the children could either retain the perfumery or dispose of it to others, and in case it was sold or retained, that a premium would be paid or given for the sales in proportion to the number of bottles that were sold; in case ten bottles were sold the premium was to be three bottles of the perfumery; in case seven bottles were sold it was to be two. The householder, was also informed at the same time that another pei'son, termed as a collector, would be at the house within a certain length of time to collect the bottles of perfumery that had not been sold or retained, and to collect the pay for the perfumery which had been sold or retained.

‘! In this city a canvass was made of certain parts of the city by the defendant and the two canvassers under her, and in about ten days the collector went the rounds and made the collections. In this particular instance the collector was the daughter of the defendant, and while here roomed with the defendant and paid the expenses of the room. The defendant claims that she did not receive any of the money collected for the perfumery sold; that her expense account was made up and sent to the Manufacturing Company in Chicago; that the moneys collected were remitted direct to the Manufacturing Company in Chicago; that she had nothing to do with that; that the collector was not under her direction or orders.

“It appears in the evidence that sales were actually made in the manner that I have described here in the city of Muskegon and collections made; that the defendant participated in the distribution of the goods and was a member of the crew, as she termed it, that were canvassing.

“No attack is made upon the validity of the ordinance in question, either as to its reasonableness or as to the authority of the council of the city of Muskegon to adopt such an ordinance, or as to the regularity of the proceedings in adopting the ordinance, or as to the right of the city to enforce the provisions of this ordinance in a proper case.

“ Counsel for defendant contends, first, that under the facts in this case, the defendant has not violated any provision of the ordinance in question, in that she made and consummated no sales herself and collected none of the money; and, second, that as applied to the facts in the case, the ordinance is inoperative, being in restraint to interstate commerce.

“ I am unable to agree with counsel for defendant as to the first contention. The ordinance itself provides by section 1 that no person or persons shall engage in the business of hawking or other peddling in the streets or other public places or from door to door, or in selling any article of trade or commerce whatsoever on any public street, park ground, alleys or places in the city of Muskegon, without first having obtained a license therefor.

“It appears in the evidence that no license was obtained by the defendant and that whatever she did she did without first having obtained a license.

“ By section 4 of the ordinance, it is provided that the amount to be paid for the license provided for in this ordinance shall be as follows: For drugs, toilet articles, perfumes, cosmetics and toys, one dollar for one day, and three dollars for one week.

“ Section 6 of the ordinance defines the term hawker or peddler and designates the persons who shall be deemed hawkers and peddlers under the provision of this ordinance. It is as follows:

“ ' Any person or persons who shall go about from house to house or place to place and sell or offer to sell any articles of trade or commerce to be delivered then or in the future, shall be deemed a hawker and peddler within the meaning of this ordinance.’

“ I do not think that it is necessary to constitute a violation of the provisions of this ordinance that there should be an actual sale of thé goods. It is sufficient, in my judgment, if there is an offer to sell, and a going about from house to house or place to place within the city of Muskegon, offering to sell goods [People v. Sawyer, 106 Mich. 428], and the conclusion is inevitable that the actions of the defendant and her associates of those under her, the canvassers, in going about and distributing these bottles of perfumery, with the instructions given to the householder at the time of such distribution, constituted an offer to sell the goods. The parties to whom the goods were delivered were each and every one offered the opportunity of purchasing the goods, and the purpose of the entire transaction was to sell the perfumery.

“ I am also unable to agree with cóunsel for defendant upon the second contention. It appears conclusively that the goods were first shipped to the defendant in the State of Michigan before they were even distributed. This is not a case where a canvasser doing business for a foreign corporation or a nonresident of this State goes about taking orders, the orders to be filled by the manufacturer and delivered to the customer or delivered and shipped to the agent to be delivered to the customer, as was the case in People v. Bunker, 128 Mich. 160, where our Supreme Court followed the decision of the United States Supreme Court in Brennan v. City of Titusville, 153 U. S. 289. Because in this case, as I have stated, the goods were already within the State before they were offered for sale.

“It seems to me that this case falls squarely within the decision of our court in the case of the City of Muskegon v. Zeeryp, 134 Mich. 181. I am unable to distinguish this case from that one in principle, and in that case our Supreme Court expressly distinguished the case of the People v. Bunker and the United States court case followed by our Supreme Court. I might say that upon the other branch in addition to what I have said that even if the defendant could not be convicted upon a mere offer of sale, in my judgment, all of the parties, the canvassers, the collectors and the defendant, were engaged in one transaction, they were participants in the one transaction, the one party offering the goods for sale, the other collecting the money; and, in my judgment, each of the participants in that transaction was a seller of the goods.

“ The defendant therefore will be adjudged guilty.”

The judgment is affirmed.

McAlvay, 0. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    PEOPLE v. BROOK.
    Constitutional Law — Trial by Jury — Criminal Law — Venue of Prosecution — Larceny from Railroad Car en Route.
    Section 11633, 3 Comp. Laws, providing that larceny in a railroad car en route may he prosecuted in any county through which the car passes, is invalid as in conflict with section 37, article 6, of the Constitution, guaranteeing trial by jury.
    Error to Oakland; Smith, J.
    Submitted June 13, 1907.
    (Docket No. 119.)
    Decided September 20, 1907.
    Leo Brock was convicted of stealing from a railway car, en route, under 3 Comp. Laws, § 11G33, and sentenced to imprisonment for not less than 2£ nor more than 5 years in the State prison at Jackson.
    Reversed.

      Rockwell & Zimmermann, for appellant.

      Frank L. Covert, Prosecuting Attorney, and C. 8. Matthews, Assistant Prosecuting Attorney', for the people.
   Hooker, J.

The defendant .was convicted of stealing property from a car en route from Detroit to Ovid, under 3 Comp. Laws, § 11633. He was convicted in Oakland county, and the proof indicated that the act was committed in the adjoining county of Wayne and not in Oakland county, and no testimony was offered tending to show that the articles were stolen in Oakland county, where the information alleges that they were stolen. The court instructed the jury that the defendant might, lawfully, be convicted of the offense charged, although the theft was committed in the county of Wayne and not of Oakland. This was clearly error unless the same was justified by the statute cited, which provides:

£< That every person who shall commit the crime of larceny in a railroad car while in the State of Michigan, and en route, shall be liable to prosecution in any county through which said car passes, and any court of ’competent jurisdiction of said county shall have jurisdiction to try and determine said cause the same as though said offenses had been committed in the county where the complaint is made.”

Counsel for respondent claim that said section is in conflict with article 6, § 27, of the Constitution, i. e.:

“The right of trial by jury'shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties, in such manner as shall be prescribed by law.”

The case of Swart v. Kimball, 43 Mich. 443, construed this section of the Constitution, holding that the right there reserved to the people was trial by jury as it had become known to the previous jurisprudence of the State, one of the essentials of which was a trial in the county where the alleged offense was. committed. , In that case a prosecution for trespass on State lands was attempted in a county other than that in which the lands were situated. The act was held void:

It is contended that the statute upon which the case now before us rests, is' distinguishable, and may be sustained. This claim may be resolved into the suggestion that when property has been stolen from a railroad car in transit, there may be difficulty in proving where the car was, at the time the property was taken, and therefore that there is a necessity for such a statute, otherwise the offense cannot be charged with any degree of accuracy or certainty of conviction.

It is no uncommon thing to have criminal prosecutions fail for want of proof, and while the danger of such failure may be greater in this class of cases than in others, it is not made clear to us how a man can be lawfully deprived of a constitutional right for such a reason. It would be a startling innovation should we say that the legislature has power to subject a person charged with crime to prosecution in any one of several counties, covering a strip of territory coextensive with the length or breadth ■ of the State, at the prosecutor’s election, and yet, that is what this statute authorizes if it is valid. It ■cannot be said that this offense was in “ contemplation of law ” committed, in each of said counties, as in a case where property stolen in one county is carried by the thief into another, or possibly where an act done in one county contributes to the commission of the offense in another. See 2 Wharton on Criminal Law, § 1397.

Whatever may have been held by the courts of other States, the cases of Swart v. Kimball, supra, and Hill v. Taylor, 50 Mich. 551, settle the rule for Michigan. It is unnecessary to pass on other questions raised.

The judgment is reversed, and a new trial ordered.

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


text:
    MUDGE v. SUPREME COURT INDEPENDENT ORDER OF FORESTERS.
    1. Life Insurance — Application for Policy — Breach of Warranty-Waiver.
    Where an applicant for a life-insurance policy intentionally falsified in giving his answers to questions concerning his health in the past, the facts that both the agent who took the application and the physician who made the examination knew the answers were false, notwithstanding which they wrote the answers as given, do not constitute a waiver, or estop the company from denying the truth of the answers.
    2. Same — Action on Policy — Breach of Warranty — Evidence —Sufficiency—Presumption on Appeal.
    Where a life-insurance policy makes the by-laws of the company a part of the contract, the failure of the company to offer the by-laws in evidence in an action on the policy will not require reversal of a judgment in its favor, the judgment being founded on a breach of promissory warranty sufficiently shown by the physician’s examination and the policy.
    Error to St. Clair; Law, J.
    Submitted June 11, 1907.
    (Docket No. 72.)
    Decided September 20, 1907.
    Assumpsit by Elizabeth Mudge against the Supreme Court Independent Order of Foresters upon a benefit certificate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      John B. Mcllwain, for appellant.

      Elliott G. Stevenson (Cyrus A. Hovey, of counsel), for appellee.
   Hooker, J.

The plaintiff in this cause is a widow, and beneficiary in a fraternal benefit certificate. Her action is brought to recover the amount thereof, and is predicated upon the death of her husband. The defense is reduced to one claim, viz., that the deceased made an intentionally false answer, in his medical examination, to the question “ Have you ever had the disease of insanity ?” Upon the trial the learned circuit judge was of the opinion that the undisputed testimony established this defense, and he therefore directed a verdict for the defendant and afterwards denied a motion for new trial. The plaintiff has appealed.

The undisputed testimony shows that the insured had previously been insane, and confined in the asylum as insane, for three months, upon an adjudication by the probate court that he was insane, based upon an application sworn to and filed by this plaintiff stating that he was insane. It also shows that he had delusions, and that he had attempted suicide twice. It appeared with equal conclusiveness that he knew that he had' been confined and treated as insane, and there was no testimony that he stated these facts to the agent or examining physician and was not a party to the insertion of the false answer in the application or report of the examining physician. On the contrary it was shown that his answers were faithfully recorded. There is no occa ’on to allude to the attempted discrimination between “insanity” and the disease of insanity under the facts in this case. Hence we find that upon this record, the judge was warranted in saying that the proof established the insured’s insanity, his knowledge of and fraudulent concealment of the same. There can be no question that this was sufficient to deprive his beneficiary of the right to recover, unless the company was estopped to assert the claim by reason of the alleged knowledge of its agents, or by a waiver.

It is contended that there was evidence tending to show that both the agent who took the application, and the physician who made the examination, knew, at that time, that the insured had been insane, and that his answers were false, and that this was the knowledge of the defendant, and is sufficient to estop it from denying the truth of the answer. Were this a case where the insured had made no misrepresentation in his answer, and was excusably ignorant of fraudulent conduct on the part of the company’s agent in inserting an answer different from that given, there might - be reason for this claim. In this case the most that plaintiff’s counsel could possibly contend, is that, by collusion between the applicant and defendant’s agent, they made a false answer, and now seek to hold the company, by making a “sword instead of a shield ” out of the salutary rule, that the knowledge of the agent is notice to the principal. Good faith is always essential to an estoppel.

In American Ins. Co. v. Gilbert, 27 Mich. 428, where the insured answered truly, but the agent inserted a false statement, with his knowledge, stating that it was right, and the insured signed, honestly believing that it was right, this court in reversing a judgment for plaintiff said:

“The very form and obvious purpose of the application with the consideration contained in it, showed that the statements it contained were to be understood as made by the applicant and upon his responsibility, as the basis of the contract of insurance he expected to obtain. And, thopgh a person ignorant of the meaning of the particular terms of special provisions used in such papers, or in the policy, or of the sense attached to them by the insurers, or of the particular rules or manner of doing business, has a right to rely on the instructions and assurances of the agent of such insurers, and upon'his acts in reference to such matters, in filling out the application; yet he cannot, therefore, escape the responsibility for the statement of facts which he inserts himself in the application, or permits the agent to insert, as his., upon which he is just as well informed as the agent himself.”

In the case of Michigan Mut. Life-Ins. Co. v. Reed, 84 Mich. 532, the court said:

‘ ‘ If the insured had no information of the agent’s misrepresentation, the company could not take advantage of the wrong of its agents and avoid the policy, but that it would have been otherwise had the insured conspired with the agent or had the insured, being fully informed of the representation made and the contents of the application, neglected to bring it to the attention of the company.”

In the recent case of Ketcham v. Accident Ass’n, 117 Mich. 521, Mr. Justice Moore said, with the approval of the full bench, that—

“It is urged that, as the agent knew the answers were not true, his knowledge was the knowledge of the company, and, having issued the policy, the company is bound. The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents.”

In the case of Maier v. Life Ass’n, 24 C. C. A. 243, 78 Fed. 570, Mr. Justice Harlan used the following vigorous language:

“ It was said in argument that the company should not be permitted to take advantage of the misconduct or wrong of its own agent. But the law did not prohibit the company from taking such precautions as were reasonable and necessary to protect itself from the frauds and negligence of its agents. If the printed application used by it had not informed the applicant that he was to be responsible for the truth of his answers to questions, and if the want of truth in such answers was wholly due to the negligence, ignorance, or fraud of the soliciting agent, a different question would be presented. But here the assured was distinctly notified by the application that he was to be held as warranting the truth of his statements ‘ by whomsoever written.’ Such was the contract between the parties, and there is no reason in law or in public policy why its terms should not be respected and enforced in an action on the written contract. It is the impression with some, that the courts may in their discretion, relieve parties from the obligations of their contracts, whenever it can be seen that they have acted heedlessly or carelessly in making them, but it is too often forgotten that in giving relief, under such circumstances, to one party, the courts make and enforce a contract which the other party did not make or intend to make. As the assured stipulated that his statements, which were the foundation of the application, were true, by whomsoever such statements were written, and as the contract of insurance was consummated on that basis, the court cannot, in an action upon the contract, disregard the express agreement between' the parties, and hold the company liable, if the statements of the assured — at least, those touching matters material to the risk — are found to be untrue.”

In New York Life-Ins. Co. v. Fletcher, 117 U. S. 519, Mr. Justice Field said:

‘ ‘ A curious result is the outcome of the instruction. If the agents committed no fraud, the plaintiff cannot recover, for the answers reported are not true; but if they did commit the imputed fraud, he may recover, although, upon the answers given, if truly reported, no policy would have issued. Such anomalous conclusions cannot be maintained.”

There are many decisions elsewhere which refuse to apply the rule of estoppel in cases of this kind. 3 Cooley’s Briefs on Insurance, p. 2569; Welsh v. Assurance Corp., 151 Pa. 607; Pottsville Mut. Fire-Ins. Co. v. Fromm, 100 Pa. 347; United States Life-Ins. Co. v. Smith, 34 C. C. A. 506; Clemans v. Supreme Assembly R. S. of G. F., 131 N. Y. 485 (16 L. R. A. 33) ; Boyle v. Relief Ass’n, 95 Wis, 318; Provident Sav. Life Assurance Society v. Llewellyn, 7 C. C. A. 581 (22 L. R. A. 620).

The case of Perry v. Insurance Co., 143 Mich. 295, 147 Mich. 645, is said to establish for this State a different rule and to have overruled the three cases quoted from. Upon its first hearing that case might have turned either on the question of waiver, or on the substantial truth of the answer; it appearing that there was evidence that defendant’s agent knew the insured’s character when he wrote the policy, and the company’s superintendent after-wards collected premiums with knowledge of her occupation. We held there that unless the warranty that she was a housewife was substantially true, or its truth waived, the policy was void, and that these were questions for the jury. It is a legitimate conclusion that although she maintained a bawdy house, which the court said was incontestably proved, that it did not necessarily follow that her statement that she was a housewife and had not been in any other occupation for two years was not substantially true. One of the. definitions of housewife, viz., “a female manager of domestic affairs,” was quoted in the opinion.”

Upon a second trial the claim that defendant’s superintendent collected premiums was eliminated upon this question. The learned circuit judge instructed the jury:

“ It does not seem to me that it is a conclusive question, because I think if the money was paid — if the agent at the time he took this application knew of her character and they gave her occupation as housewife, instead of prostitute, that I still think the company would be liable, and in this case I do not think the question is a conclusive question.”

This was sustained. It cannot be denied that this gives plausibility to the claim that defendants make, viz., that although both insured and agent knew of her disreputable character and the omission to state it, the knowledge of the agent estopped the defendant. It should be considered, however, in the light of the previous opinion, viz., that her answer might be found substantially true, i. e., that she was a housewife, and that she had not engaged in other occupations within two years. This part of the charge related to the question of waiver, which the court held was not the only question in the case. If he had used the word “might ” instead of “ would ” the decision would not have the significance contended for, and it is quite probable that this language may have been qualified by other portions of the charge relating to the other question in the case. Counsel pertinently suggest that no allusion was made to the cases quoted from. They could not well have been overlooked and would not have been ignored had there been an intention to overrule them.

Counsel have raised the further point that the defense should have been held to have failed for another reason. The by-laws formed a part of the contract, and were not offered in evidence by the defendant. The policy and the physician’s examination were sufficient to show the breach of contract, and if plaintiff’s counsel had claimed that the by-laws would have shown the contrary they would doubtless have produced them. To reverse the judgment upon this ground would be to do so for a very technical reason or upon a presumption that the by-laws nullified the express provisions of the policy. The plaintiff has failed to show any error, and the judgment is affirmed.

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


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    WHITE v. OWOSSO SUGAR CO.
    1. Master and Servant — Personal Injuries — Dangerous Employment — Warning.
    Plaintiff, a common laborer, was directed by his master to assist in holding up and bolting to place an iron plate forming a part of the spout of a bucket conveyor in a beet sugar mill, and while that duty was being performed one corner of the plate got inside the spout, caught on a descending bucket, and injured plaintiff. Held, that whether plaintiff’s employment as a common laborer comprehended that duty was immaterial, the danger being so apparent as to call for no warning.

      2. Same — Negligence of Master — Insufficient Help.
    Negligence of the master in not providing sufficient help to handle a heavy article is not available to a servant injured while handling it while other employés of the master stood by and could have aided had it been thought necessary.
    3. Same — Assumption of Risk.
    A servant employed at common labor pannot recover of his master for an injury received while handling a heavy article, the danger being obvious, and the master having no knowledge of the danger that the servant did not possess.
    Error to Shiawassee; Miner, J.
    Submitted June 12, 1907.
    (Docket No. 85.)
    Decided September 20, 1907.
    Case by Robert White against the- Owosso Sugar Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Walsh & Pardee, for appellant.

      Keena, Lightner & Oxtoby, for appellee.
   Hooker, J.

The plaintiff has appealed from a verdict of “no cause,” directed by the court, upon the conclusion of the testimony in a personal injury case. Briefly stated, the facts proven are, that he applied to the defendant for common labor at its factory, where he had worked before, and was told that he could have a job on the diffusion tanks. His duty in that regard was to open and close the doors of certain tanks, at proper intervals, and aid in the removal of their contents, which consisted of beet pulp. It is unnecessary to describe his duties at length. There was an apparatus in the factory for elevating pulp. It consisted of buckets attached to endless chains which ran upon pulleys, and resembled, in a general way, the elevators in a mill, in principle, though it ran in a larger shaft. It is manifest that the buckets ran upward on one side and down on the other. The shaft was sheet iron sides with angle iron corners, and near the lower end of the shaft, in the basement, there was a place in the shaft which could be opened by taking off one of the side plates, which was done by removing the bolts by which it was usually fastened to the vertical angle iron corners. On the day of the accident this elevator had been undergoing examination or repair, and the plate mentioned had been taken off, the elevator having been stopped for the purpose. It being desired to replace this plate, the plaintiff was called from his work, and directed to aid another man in raising it up to its proper place, so that'the bolts could be put in and made secure, which they proceeded to do, the elevator having been started in his presence for examination of the buckets and being running at the time. This plate probably weighed somewhere from 135 to 200 pounds, the testimony being in conflict in this regard. In lifting the door up they allowed one corner to go inside of the shaft, where it was struck by the descending bucket, and pushed downward to the injury of the plaintiff. It is a reasonable inference that the iron was pretty heavy and got momentarily beyond their control, with the above result. It is not clear which if either of the men was responsible for its tipping against the bucket, or whether it was due to the negligence of either. The plaintiff claimed that the defendant was negligent:

1. In giving him this task without warning him of its perils.

2. In not providing more help to lift and hold up the door. i

3. In failing to give plaintiff a safe place to wbrk.

The defendant insists that this was labor of the most common kind, that warning of its dangers was unnecessary, because they were apparent, that plaintiff was in a better situation to know whether more help was required than, defendant was, and did not ask assistance although there were two or three men standing by who could as well have given it had it appeared necessary. Counsel maintain therefore that the plaintiff assumed the risk of the work.

The labor for which plaintiff applied was common labor. That which he was set at work upon was such. It does not necessarily follow that he engaged to do whatever in the nature of common labor his employer should afterwards direct him to do, though a jury might reasonably infer that he did engage to do so, from the nature of his application, his former employment (when he did various kinds of work), and his ready acquiescence when asked to go with his superior to do the work in question. It is perhaps more reasonable to suppose that he expected to do any work about the factory that he should be set at, and that his employer so understood the employment, and felt at liberty to change his work at will. Emergencies of greater or less importance necessarily arise in the conduct of a manufacturing business, calling for unusual work, and in such cases it probably is not unusual to call men from their regular routine duties for special work, and to say that the master necessarily assumes the risk of injuries that result, is going too far. In this case the work to be done was to bolt an iron plate upon the frame of an elevator shaft. It was four feet square and a quarter of an'inch thick. It was necessary to raise it up so that its top side was six or seven feet above the floor and to hold it in place until it could be secured by bolts. This in itself was nothing more than common labor, and ordinarily would call for no superior intelligence. It would be a very low degree of intellect that would not understand the danger that would follow the contact of the iron plate with the descending buckets, which were in motion when the plate was lifted, and the danger to be apprehended from such contact was so apparent to any one, that we think it was not negligence in the master to omit calling special attention to it. We have often said that it is not negligence to omit warning against an obvious danger. See Swick v. Cement Co., 147 Mich. 454, where the subject is dicussed and authorities are cited, also Bauer v. Foundry Co., 132 Mich. 537. It is therefore unimportant, so far as warning is concerned, whether this was within the scope of plaintiff’s engagement or not. Gavigan v. Railway Co., 110 Mich. 71.

It is contended that the defendant was negligent in not providing more men to aid in lifting the plate. It is inferable from plaintiff’s testimony that it was so heavy that the two men could not hold it, and that it wobbled and slipped out of place, and a corner got inside of the shaft and was struck by a bucket. The record shows that other men stood idly by and could have aided had it been thought necessary. There is some dispute in the testimony concerning the feasibility of using more men. The plaintiff’s own testimony shows that one Connors who was engaged in the work told plaintiff and another to lift up the plate, and that he took hold of it the way he was told to do.

There is no proof of the master’s negligence in the record and we think that the plaintiff assumed the risk of the obvious danger through which he was hurt. The case is similar to Nephew v. Whitehead, 123 Mich. 255. It was there said:

“An employé, experienced in handling heavy objects, cannot recover against his employer for injuries received, by being struck by an iron beam which he was assisting to unload from a wagon on which he had helped to load it; the operation being a simple one, and the employer having no knowledge of danger that the employé did not himself possess.”

The court in conclusion in that case says, on page 257, as follows:

“If the plaintiff can recover in this case, an employer of labor would be liable whenever an accident occurred. The operation to be performed was a simple one. With the experience plaintiff must have had in handling heavy objects, he must have known as much about the danger as any one. See Pilucki v. Spring Works, 117 Mich. 111. We do not deem it necessary to discuss the case.”

See, also, Roepcke v. Railroad Co., 100 Mich. 541; Timm v. Railroad Co., 98 Mich. 226.

The question of safe place is not involved in the case.

The judgment is affirmed.

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


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    BANGS v. BROWNE.
    1. Executors and Administrators — Accounting — Reopening Estate — Fraud—Evidence—Sufficiency.
    On a bill against executors and a bank to reopen an estate and for an accounting, evidence examined, and held, that there is an entire failure to establish the claim that a gift by decedent of money in the bank to his stepdaughter, shortly before he died, was a collusively corrupt attempt to rob the decedent, to which the bank, through its officers, was a party.
    2. Same — Appeal—Questions Considered — Testimony Admissible.
    Where there is an entire failure to prove that a transaction with a deceased person was a fraud upon him, as claimed, it is not necessary to determine the admissibility of testimony explaining the transaction offered by defendants and objected to as being matter equally within the knowledge of deceased.
    3. Gifts — Validity—Acceptance—Presumption.
    Acceptance will be presumed in support of the validity of a gift of money in bank, though the donee did not know of it until after the donor died, where the donor wrote a check which was taken to the bank and deposited to the donee’s credit, and the amount thereof entered in a pass book kept in the bank, with other customers’ books, subject to call jay her.
    Appeal from Kalamazoo; Adams, J.
    Submitted June 13, 1907.
    (Docket No. 35.)
    Decided September 20, 1907.
    Bill by Vital E. Bangs and others against Ella Browne, and Robert J. Williamson and J. Davidson Burns, executors of the last will and testament of Henry Brees, deceased, and the Kalamazoo Savings Bank, to reopen an estate, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      N. H. Stewart (S. M. Meek and G. G. March, of counsel), for complainant.

      Dallas Boudeman, Alfred J. Mills, and Thomas W. Browne, for defendants.
   Hooker, J.

The wife of Henry Brees was twice a widow, before she married him, which she did in 1848. At that time she had four children, whose father was named Bangs, he being her first husband, and one named Soledad La Vegas, a daughter of her second husband. All ■came to. Kalamazoo, and were brought up in the family of Brees. Their mother died many years ago, after which time Soledad Drake, formerly LaVegas (a widow), and her two daughters, Ella and Jennie, took up their abode with him, and managed his household affairs until he died April 30, 1897. He was then 88 years old.

Brees was a man of some wealth, his estate having inventoried $180,000. Robert J. Williamson and J. Davidson Burns, his associates in business, settled his estate as executors, under a will made by him some three years before his death, in which several, if not all, of the complainants now claim to be residuary legatees, either in their own right or through representation. The evidence indicates that they were disappointed in the amount of the estate, and that some of them, especially Mrs. Taylor, a daughter, and one Cooney, a son-in-law of Mrs. Taylor, claimed and did not hesitate to charge the executors with having*covered up and diverted a large amount from the estate. Some seven years after the death of Brees, and some time after the estate was closed and the executors discharged, the bill in this case was filed. The defendants are Ella Browne (formerly Drake), the two executors as such, the Kalamazoo Savings Bank, and Soledad Drake, and it charges in substance, among other things, that the executors and the bank colluded with Ella Browne and her mother to filch $80,000 from the estate and put it in the possession of Ella Browne, which sum or a part of it was alleged to have been used in partially erecting a valuable building. It prayed: First. That the order settling the final account and discharging the executors be set aside, the estate reopened, and kept open until the final order of the court in this cause. Second. That defendants be required to produce books and papers. Third. That they come to a fair accounting for the said $80,000 and interest, and that the same and any other property formerly belonging to Henry Brees be restored to the estate. ■ Fourth. A preliminary injunction to protect the estate. Upon the hearing the bill was dismissed as to Soledad Drake, and later it was dismissed as to all of the defendants, and the complainants have appealed.

The case really involves but one transaction, viz., the bona fides of an alleged gift of $80,000 to Ella Browne a few weeks before the death, of Henry Brees. Two questions of law are raised, one crucial, and the other of more or less importance, depending upon the view taken of the testimony. The first is whether this alleged; gift necessarily failed for want of acceptance by Ella Browne before Henry Brees died; the other how far, if at all, testimony given by the several defendants was inadmissible under the statute.

The books produced upon the hearing show that on March 2, 1897, Henry Brees had two accounts in the defendant bank, one a savings account, amounting with interest to $80,993.78, the other a commercial account of some thousands. This appeared from the bank pass books held by Brees and from the books of the bank, which agreed with them.

On March 2, 1897, a check to Ella Drake, admittedly written by Williamson, and purporting to be signed by Brees, was paid by the balancing of the savings account of Brees; $80,000 being transferred to an account then opened by the bank with Ella Drake, and $993.04 transferred to the commercial account of Brees and entered upon his commercial bank book. This item of $80,000 was not accounted for nor mentioned in the inventory of the Brees estate. Brees died about two months after the transaction mentioned and apparently the executors treated the deposit as no longer his; and in this they were clearly justified unless, as counsel for complainant claim, this was a collusively corrupt attempt to rob Mr. Brees, to which the bank through its officers was a party.

The complainants’ proof consists largely of interviews between Mr. Cooney and his counsel, Mr. Meek, of Illinois, and Mr. Williamson, from which counsel ask us to find evidences of fraud and wrongdoing on the latter’s part, and to infer collusion in the transaction referred to; but we are not thus impressed. On the contrary, we believe the statements of Mr. Williamson because they seem much more reasonable and probable. This leaves very little of complainants’ case. There is nothing so unnatural in the preference shown Ella Browne by Henry Brees in the division of his estate as to shock any one, unless it be the disappointed stepbrothers and sisters and Mr. Cooney. Soledad Drake and her daughters .had lived with him long and he had provided bountifully for them in life. Why should he not feel concern for them after he should be gone ? Apparently there was warm affection toward Soledad and her children on his part. An unfortunate son of ■ Soledad was hopelessly insane and would need to be provided for, and there is evidence that his relations with Ella were close and friendly. We find nothing showing such a relation to the older children and their descendants that makes this preference unreasonable. He was under no obligation to leave them anything. Had he hot left a will they would have had no interest in this estate, as they are not the heirs of Henry Brees. It is as residuary legatees that they make this contest.

We have so far said nothing of the testimony of the defense relating to the transaction at the residence of Henry Brees, where he is said to have directed the drawing and signed the check, with directions as to its disposition, because we feel fully warranted in saying from the other evidence that the complainants have signally failed to prove a charge of wholesale fraud, corruption, and crime on the part of people apparently respectable. It is but fair to say that there is evidence in the case which, if admissible and believed, wholly refutes this charge. We do not discuss it or rest the case upon it, #,nd it is there -. fore unnecessary to decide what portions of the testimony of Ella Browne, Mr. Williamson, and others, if any, is within the statute which excludes the testimony of parties to matters equally within the knowledge of deceased.

It only remains to refer to the question of law relating to the nonacceptance of the gift. The evidence shows that Ella Browne did not know that Mr. Brees made this check at the time he is said to have made it. It was taken by the bank, placed to her credit, and her pass book kept in the bank with other customers’ books subject to call by her, but it is claimed she was not informed of the circumstances until after the death of Mr. Brees. It is claimed that this fact shows that she did not accept the gift, and is fatal to it. Acceptance may be presumed in this case, even if we reject the testimony of Ella Browne as to the talk with Mr. Brees about it the night before he died. Green v. Langdon, 28 Mich. 221; Ellis v. Secor, 31 Mich. 185; Bostwick v. Mahaffy, 48 Mich. 345; In re Dunlap’s Estate, 94 Mich. 11; O’Neil v. Greenwood, 106 Mich. 572; Holmes v. McDonald, 119 Mich. 566; Lewis v. Curnutt, 130 Iowa, 437, and cases cited.

In this case there was a plain delivery of a check, presented at the bank, paid by transfer of the fund to. the payee, Ella Drake, and evidence thereof kept in the bank subject to her call. There is not the slightest evidence that Mr. Brees had any control of the fund or the book at any time. The decree is affirmed, with costs.

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