author: Grant, J.

text:
    JIROCH v. TRAVELERS’ INSURANCE CO.
    Insurance — Accident Insurance — Physical Injury.
    In an action on a policy of insurance against accident, not covering loss caused by disease in any form, evidence examined, and held, to support a verdict for plaintiff, against the contention that the weight oí the evidence showed that gangrene and the consequent amputation of plaintiff’s leg was not caused by a burn accidentally received, but by diabetes from which plaintiff was suffering before being insured, but which the evidence showed had been cured.
    Error to Muskegon; Russell, J.
    Submitted June 6, 1906.
    (Docket No. 14.)
    Decided July 23, 1906.
    Assumpsit by Francis Jiroch against the Travelers’ Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cross, Lovelace & Boss, for appellant.

      Nims, Hoyt, Erwin & Vanderwerp, for appellee.
   Grant, J.

Plaintiff recovered a verdict and judgment for $1,773.91 against the defendant, upon a policy of insurance insuring against accident. Plaintiff met with an accident in a hot-air bath by which his feet were burned. The burn was not at first considered serious. His physician treated the injury, but gangrene soon developed, rendering it necessary to first amputate two toes and finally to amputate one leg about half way between the knee and the ankle. It is conceded that the judge correctly instructed the jury as to the law. The only alleged error which is important to discuss is that based upon the refusal of the court to grant a new trial, upon the ground that the verdict was contrary to the weight of the evidence. The policy contained a provision that the insurance covered thereby shall not “cover accident, injury, death, loss of limb or sight, or disability resulting wholly or partly, directly or indirectly, from intoxication, or while intoxicated, from or while violating the law, or from disease in any form, or from the bites or stings of insects, or from medical or surgical treatment (except amputations necessitated solely by injuries, and made within 90 days after accident).”

The court at the request of the defendant instructed the jury as follows:

“ The contract of insurance entered into by and between the defendant and the plaintiff provides, among other things, that this insurance shall not cover accident, injury, death, loss of limb, sight or disability, resulting wholly or partly, directly or indirectly from disease in any form. This was a stipulation parties had a right to enter into, and I charge you as a matter of law that the amputation for which the plaintiff seeks to recover in this action must have been caused solely by the accident he claims to have received, and not directly or indirectly, or wholly or in part from any disease with which he was suffering at the time he received the injury.
“ I charge you as a matter of law that although the plaintiff sustained the accident for which he seeks to recover in this case, yet if, at the time it occurred, he was suffering from a pre-existing disease or bodily infirmity, and the accident alone would not have caused or necessifated the amputation of the foot if he had not been affected with a disease or infirmity, plaintiff cannot recover.
“ I charge you as a matter of law that if you find from the evidence in this case that the amputation of plaintiff’s foot was made necessary because the accident which he claims to have received aggravated the effects of a preexisting disease, or the disease aggravated the effects of the accident, the express contract between the parties was that the insurance company should not be liable, and plaintiff cannot recover.
“ I charge you that if you find from the evidence in this case that the amputation of plaintiff’s foot was made necessary because of the accident which he claims to have received, aggravated the effects of a pre-existing disease, or the disease aggravated the effects of the accident, then in such case the amputation would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract between the parties exempted the defendant from liability therefor, and plaintiff cannot recover.”

Counsel'for the defendant claims that the plaintiff at the time of the application for and the issuance of the policy and at the time of the accident, was afflicted with diabetes, and that the gangrene and amputation necessitated thereby were the result of the disease, and not of the accident. The evidence of the physicians on the part of the plaintiff as well as of the defendant showed that there are three forms of diabetes, one of which is curable. Plaintiff gave evidence showing the existence of sugar in the plaintiff’s urine before the issuance of the policy; that it was the form that was curable, and that his physician then pronounced him cured of the disease. After the amputation an analysis of the urine showed the presence of sugar. There was evidence tending to show that a shock such as that suffered by the plaintiff was liable to cause diabetes. Defendant’s own physician diagnosed the gangrene as being traumatic; i. e., caused by the wound. It would be of no profit to the parties or to the profession to extend this opinion into a detail of the evidence. The evidence was ample to justify the finding of the jury that the plaintiff was not afflicted with diabetes when he applied for and received his policy, and that the disease which developed subsequent to the accident was attributable to it.

. Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    McGAW v. MANNING.

    1. Equity — Laches—Appeal—Reversal—Boundary Dispute.
    Where defendant in trespass in justice’s court, after pleading title and removing the case to the circuit court, filed a bill and obtained an injunction restraining further trespass by plaintiff until the suit at law should be determined, and plaintiff in the trespass case delayed for over four years bringing it to trial, after which time the chancery case was tried, resulting in a decree for complainant adjudging him the owner of the land in dispute, the defendant in the chancery case was not in a position to insist that the decree be reversed and the parties remanded to their remedy in the suit at law.

      2. Boundaries — Adverse Possession — Evidence—Sufficiency.
    On the issue of the ownership of a strip of land along the boundary between two lots, evidence examined, and held, to show title in complainant by adverse possession, notwithstanding the line, according to the plat, was as defendants claimed.
    Appeal from Kalamazoo; Adams, J.
    Submitted June 6, 1906.
    (Docket No. 4.)
    Decided July 23, 1906.
    Bill by David McG-aw against Edwin J. Manning and Eliza Manning to restrain trespass upon land. From a decree for complainant, defendants appeal.
    Affirmed.

      The dispute in this case arises over the title to a strip of land about six feet in width. Complainant is the owner of lots 14 and 15 of College addition to the village (now city) of Kalamazoo. The defendant Edwin J. Manning is the owner of the adjoining lots 12 and 13. . It is conceded that the boundary line, according to the original plat, is that claimed by the defendant. Complainant claims title by adverse possession. On May 8, 1900, defendant Edwin J. Manning sued complainant in trespass in justice’s court, claiming that he (Manning) was in possession of the disputed strip and that complainant had trespassed thereon. Complainant, the defendant in that suit, interposed a plea of title, and the case was thereupon certified to the circuit court for trial. It was noticed for trial at the next term of court, when, a few days before the opening of the term, complainant filed this bill, setting forth that defendant was building a wall in front of his lot, on the street line, and threatened to extend the wall across the six-foot strip in dispute, and prayed for an injunction on the ground that such wall would cause irreparable injury and that an injunction would prevent a multiplicity of suits. Issue was duly joined, proofs taken, and decree entered for the complainant, adjudging him to be the owner of the property and permanently enjoining the suit at law.

      N. H. Stewart, for complainant.

      Osborn & Mills, for defendants.

       Rehearing denied December 17,1906.

   Grant, J.

(after stating the facts). The bill in this case was filed September 6, 1900. It was heard upon proofs taken in open court on March 17, 1904. The bill did not pray for a temporary injunction of the suit at law, and hone was granted. Upon the decree the suit at law was enjoined. Such result would properly follow an adjudication that title was in the complainant. The bill prayed that defendant be restrained from committing trespass “until a judgment in said pending suit at law.” No explanation was offered why the suit at law was not tried. It appears that for nearly four years the suit at law was permitted to rest, and then the parties submitted their contest to the court in chancery. Under these circumstances we do not think the defendants are in position to now insist that the decree should be reversed and the parties remanded to their remedy in the suit at law. Defendant Edwin J. Manning was the moving party in that suit, and he cannot complain if he failed to bring it to trial.

We think the court properly disposed of the case upon its merits. The evidence on the part of the complainant showed that the purchaser and owner of lots 14 and 15, and one of complainant’s grantors, built a fence along the line now claimed by complainant in 1866, and planted trees, shrubs, and bushes up to the fence line; that the fence remained until it disappeared through decay; that the stubs of. the posts are still in the ground; that the trees, shrubs, and bushes are still there; and that this exclusive and hostile occupation continued for a period of more than 20 years. The court found with the complainant. An examination of the record convinces us that his conclusion is correct, and that complainant had obtained title by adverse possession.

The decree is affirmed, with costs.

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


text:
    MAHER v. MCKNIGHT.
    Appeal and Error — Findings of Fact — Conclusiveness.
    A finding of fact for -which there is foundation in the evidence in a case tried without a jury cannot be interfered with on error.
    Error to Kent; Perkins, J.
    Submitted June 7, 1906.
    (Docket No. 30.)
    Decided July 23, 1906.
    Assumpsit by Edgar A. Maher against William P. McKnight, James T. McAllister, and John J. Tweddle for services rendered. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Richard L. Newnham, for appellant.

      McKnight & McAllister, for appellees.
   Grant, J.

Plaintiff brought suit to recover for the services as attorney for the defendants the sum of $300 and $15.50 expenses. The case was tried before the court without a jury. The findings cover nine pages of the printed record. The proposed amended findings cover nine more pages.

Neither the rendition of the services nor their value is disputed. The defense is that the services of plaintiff were not rendered for the defendants, but in the interests of other parties, clients of plaintiff, who were interested in a long litigation over the property which was the subject of the dispute. Defendants McKnight and McAllister were attorneys and represented the original claimant in the litigation. It is conceded by plaintiff that, up to a certain point, he had a contract with his former clients to compensate him for the services rendered, and that he looked to no one else. 'At this point Wolcott & Perkins commenced a suit involving an interest in the same property, and plaintiff appeared in that litigation as the solicitor for these defendants. He claims that when that part of the litigation, prior to the suit of Wolcott & Perkins, had terminated, he settled with his clients and no longer looked to them for his pay. He did not, however, notify McKnight & McAllister of that fact. Nothing was said by plaintiff to defendants to indicate that he was acting for them under any other or different arrangement than that which formerly existed. Defendants rested and acted upon the theory that plaintiff’s relation with his former clients still existed.

The court found as a fact:

“That there was no express agreement between the parties whereby the plaintiff was employed to assist in the conduct of the suit of Wolcott & Perkins against Tweddle, but the plaintiff was requested by the defendants to assist in its conduct, in reliance upon the understanding and agreement aforesaid, believing that no charge for such services would be made either against Mariette Pingleton or her solicitors, McKnight & McAllister.”

There was evidence upon which such finding is based. This being so, this court cannot interfere with the conclusion reached.

The judgment is affirmed.

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


text:
    CAREY v. NISSLE.
    1. Witnesses — Impeachment— Contradictory Statements — Evidence — Admissibility.
    Where the payee of a note sued on has testified to its execution and its assignment to plaintiff, and denied stating, after the date of the alleged assignment, that he still owned the note and had deposited it as collateral, evidence is admissible that he did so state, the testimony not being received as substantive proof of title in him, but for the purpose of impeachment.
    3. Bills and Notes — Bona Fide Purchasers — Failure of Consideration-Evidence.
    Where, in an action on a note by an indorsee, there is evidence tending to show that plaintiff is not a bona fide purchaser, the contract accompanying the note and evidence of a breach of the guaranty contained therein, are admissible.
    3. Trial — Argument of Counsel — Support in Evidence.
    In an action on a note given for the price of a horse, statements of counsel for the defendant that the horse had been returned according to contract for breach of the guaranty under which he was sold, examined in connection with the evidence, and held, to be properly'supported by the evidence.
    Error to Washtenaw; Kinne, J.
    Submitted June 7, 1906.
    (Docket No. 34.)
    Decided July 23, 1906.
    Assumpsit by Alice Carey and Ella Carey, copartners as Carey Sisters, against William F. Nissle and others on a promissory note. There was judgment for defendants, and plaintiffs bring error.
    Affirmed.
    This is a suit upon a promissory note of 1233.33, of which the defendants were makers and W. P. Stimmel and L. Harris, under the name of Stimmel & Harris, were payees, and indorsed by them to the plaintiffs without recourse. The defendants reside at Saline, Mich., and the plaintiffs and Stimmel and Harris reside at Plain City, Ohio. The note was one of three executed by these defendants to Stimmel & Harris, and by them assigned to the plaintiffs. The notes were given in part payment of a stallion for the price of $1,500. The notes were joint and several. There were to be 15 subscribers for the purchase of the horse at $100 apiece. The contract for the sale of the horse contained a guaranty that he would “get 50 per cent, of breeding mares foaled by side.” In case the guaranty should fail, Stimmel & Harris agreed to replace him with another horse of the same breed, price, and equal merit, upon delivery of the above-named horse, if as sound and in as good condition as when purchased.
    Defendants gave evidence tending to show fraud on the part of Stimmel & Harris and of their agent O’Hara, in the sale of the horse, of a breach of warranty, of the surrender of the horse, demand of another to take its place, and the refusal of Stimmel & Harris to comply therewith. The evidence on the part of defendants also disclosed that Harris was the principal man in the transaction; that he was in the employ of the plaintiffs on their farm in Ohio; lived with them; had been in the employ of their father before his death; that plaintiffs indorsed Stimmel & Harris’ note for the purchase of the horse; and that they knew that the basis of the notes was a horse trade.
    ■ Plaintiffs claimed to be bona fide purchasers. They gave evidence tending to show that they indorsed the note here in suit and the other two; that they took them to the bank in Plain City, indorsed them, obtained the money, and that that money was used in payment of the notes they had previously indorsed for Stimmel & Harris. On cross-examination of Alice she testified as follows:
    “ Q. What was the agreement between you and Mr. Harris as to what he would do in case you failed to recover upon those notes ? Did he agree to pay you back your money ?

      “A. Yes, sir.
    “ Q. And wasn’t it because of that agreement that you let him have the money, and has not he paid a portion of it back to you ?

      “A. Of course we will not lose it.
    “ Q. Has not he paid part of it back ?

      “A. No, sir.
    “ Q. Do you hold his note for it ?
    “ A. I am not decided. I am not prepared to say.
    “ Q. And isn’t it because he gave you his note for that amount, or agreed to pay it back to you, that you made the indorsement of those notes ‘ without recourse ? ’
    “ A. Yes.”
    She endeavored to correct this testimony upon redirect examination. Her testimony on cross-examination, if true, had an important bearing upon the question of bona fides. Its truth was for the jury. Verdict and judgment were rendered for the defendants.

      Frank A. Stivers {M. J. Lehman, of counsel), for appellants.

      Frank E. Jones and John P. Kirk, for appellees.
   Grant, J.

{after stating the facts). 1. The court correctly instructed the jury upon the law of the case, stating the theory of each of the • parties. With those principles of law the profession is familiar. This case in many of its facts is similar to Fink v. Chambers, 95 Mich. 508, and is ruled by it. Of the allegations of error three only need discussion. Harris was a witness for the plaintiffs to prove the execution of the notes and the assignment by him and Stimmel to the plaintiffs. On cross-examination he was asked whether he had not stated to certain parties that he still owned the notes; that he had deposited them in the bank as collateral and had obtained money upon them. He denied making such statements. The defendants were permitted to introduce testimony that he had made such statements. Counsel for plaintiffs insist that this testimony was a violation of the rule that the statements of a vendor or assignor, after he has parted with his title, are inadmissible to affect the rights of the vendee or assignee, citing Muncey v. Insurance Office, 109 Mich. 542; Krementz v. Howard, 109 Mich. 466; Fenton v. Miller, 108 Mich. 246, and other cases. This testimony was not received by the court as substantive proof, but for the purpose of impeachment. While Harris was not asked on direct examination what consideration he received for the transfer of the notes, yet his testimony that he had transferred them to the plaintiffs opened the door for an inquiry as to the consideration and ownership of the notes. No error was committed by the rulingof the court.

2. Error is also assigned upon the introduction of the contract containing the guaranty. If there had been no evidence to show that plaintiffs were not bona fide purchasers this would have been incompetent. But purchasers with notice or with such knowledge as should put them upon inquiry, take subject to the same defense that could be made against the original payee. In other words, such holders of commercial paper stand in no better position than would their assignors.

3. Complaint is made of the following argument by defendants’ counsel to the jury:

“ I stated that the horse had been returned to Mr. Harris, and that if he has not disposed of him he has him at the present time.”

This and similar language is based upon the argument that there was no evidence tending to show that the horse had been returned. The evidence disclosed that upon the failure of the horse to comply with the guaranty the defendants returned him by one Burkhardt to Harris, upon the farm of the plaintiffs at Plain City; that Burkhardt informed Harris that he had brought the horse back; that Harris replied that he could not do anything until he met his partner who would be back at 5 o’clock. Burkhardt further testified:

‘ ‘ I asked where we could leave the horse. He (Harris ) asked the liveryman if he had room for the horse, and he said he could make room. That is where I left the horse. We also agreed to meet in the city.”

He further testified that Harris and Stimmel didn’t meet him as agreed, and that the next morning he again went "to the farm, found Stimmel and Harris, requested another .horse, and they replied that “they would not do anything about the horse.” This was evidence tending to show a return of the horse, and the demand for. another under the terms of the contract.

The judgment is affirmed.

Carpenter, C. J., and McAlvat, Hooker, and Moore, JJ., concurred.


text:
    HUBBARD v. LEITER.
    1. Brokers — Contracts—Mutuality—Execution.
    A written contract authorizing a broker to sell real estate, and providing for a commission in case he finds a buyer, is not, after sale, void for want of mutuality, since, by performance on the broker’s part, it becomes executed, and he is entitled to his commission.
    :2. Same — Sale by Owner — Commissions.
    An owner of real estate cannot avoid liability for the commission to a broker provided by a contract authorizing the broker to sell the property, by himself making the sale to a customer introduced by the broker on practically the same terms as originally proposed.
    Error to Berrien; Coolidge, J.
    Submitted June 7, 1906.
    (Docket No. 43.)
    Decided July 23, 1906.
    Assumpsit by M. C. Hubbard, M. J. Merwin, and C. K. Farmer, copartners as Hubbard, Merwin & Farmer, against Edward T. Leiter for commissions on the sale of real estate. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Defendant, a dealer in real estate, listed his farm of 48 acres with the plaintiffs, real estate brokers, for sale under the following written agreement:
    “I desire you to sell for me the property described above at the price, terms, and kind of payment- named, or at less price or easier terms I may hereafter approve, and if you sell or trade same, or refer a customer to whom I sell, or if attention is called to said property through your influence in any way directly or indirectly, resulting in any sale or exchange, I promise to pay you a commission of per cent, in trade, 5 per cent, cash sale.
    “If, for any reason, said property is withdrawn from the market, I promise to notify you immediately.
    “Dated Oct. 7, 1904.
    *E Leiter
    “ Address, R. F. D. No. 1, Berrien Center, Mich.”
    Both parties resided in Benton Harbor. Acting upon the authority so conferred plaintiffs entered into negotiations with one Anderson, took him in company with defendant to defendant’s farm, and also took defendant to see the property which Anderson proposed to exchange. Defendant was satisfied with the price of the Anderson property. Anderson was not then satisfied with the price defendant asked, or with the condition of the buildings, claiming they were not in good repair. The deal was not then consummated. Plaintiffs had several talks with Anderson subsequently, and also with Leiter about the sale. Defendant made some repairs upon his buildings, and then sold the property to Anderson upon the same terms as were first mentioned between them. This suit was brought in justice’s court to recover the commission of %% per cent, provided for in the contract. The defendant insisted that plaintiffs did not procure a purchaser, and were not the procuring cause of the sale, but that the sale was made either through another broker named Harner, or by defendant’s exertions. Verdict and judgment were rendered for the plaintiffs.

      John J. Sterling, for appellant.

      Cady & Andrews, for appellees.
   Grant, J.

(after stating the facts). Counsel for the defendant insists that the contract is void for want of mutuality. ' There is no force in this contention. Defendant gave authority to plaintiffs to find a customer for his land, and agreed to pay a commission if they found one to whom he should sell. If he found such a purchaser and defendant sold to him, the contract became executed (McDonald v. Ortman, 88 Mich. 645, 98 Mich. 40), and plaintiffs became entitled to their commission. The court expressly instructed the jury that if Mr. Harner was the procuring cause of the sale, the plaintiffs could not recover. It was also contended on behalf of defendant that negotiations with Anderson had been abandoned by the plaintiffs. The court instructed the jury that if this were so the plaintiffs could not recover. Under the instruction the jury found that there was no abandonment, and that the plaintiffs procured a purchaser to whom the defendant made a sale.

Defendant requested the court to instruct the jury that if the.defendant himself was the procuring cause of the sale of his land to Anderson, then plaintiffs could not recover. The reply to this is that there was no testimony on which to base such an instruction. Defendant could not avoid his liability by himself making a sale to Anderson on substantially the same terms as were originally proposed.

We find no error upon the record, and the judgment is affirmed.

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


author: Mooee, J.

text:
    COSTON v. COSTON.
    1. Evidence — Hearsay.
    On a bill by a widow to establish her ownership of a benefit certificate issued to her husband in favor of his mother, evidence that he had told complainant he had demanded the certificate of his mother and that she had refused to give it up is hearsay.
    2. Insurance — Mutual Benefit Societies — Certificate — Change of Benefioíary.
    On a bill by the widow of a member of a mutual benefit society to establish ownership of a certificate issued in favor of his-mother before his marriage, evidence examined, and held, insufficient to establish complainant’s right to the certificate, though she made some of the payments thereon in reliance on his promise that he would assign or will it to her, neither of which he ever attempted to do.
    Appeal from Kent; Perkins, J.
    Submitted June 8, 1906.
    (Docket No. 72.)
    Decided July 23, 1906.
    Bill by Emma Coston against Catherine Coston and the Knights of the Modern Maccabees to determine the title to a policy of insurance. Prom a decree for complainant, defendants appeal.
    Reversed, and decree entered for defendants.

      Carroll & Nichols, for complainant.

      Martin H. Carmody (Francis A. Stace, of counsel)* for defendant Coston.

      John B. Mclhvain, for defendant Knights of the Modern Maccabees.
   Mooee, J.

This is a controversy as to who is entitled to $2,000, payable by the Knights of the Modern Maccabees, on the death of Maurice Coston. The defendant Catherine Coston, his mother, is the beneficiary named in the certificate, and the complainant is his widow. Maurice Coston, then unmarried, became a member of defendant society March 21, 1900, and a certificate payable at his death to his mother was issued to him and was by him delivered to his mother, who retained it until after his death. On January 29, 1901, Maurice Coston married complainant and lived with her until his death, April 21, 1904, a child having been born November 30,1901, which is still living. No change of beneficiary was ever made, nor was any request made by the deceased, of the defendant order, to change the beneficiary. After his death, the defendant Catherine Coston filed proof of death and made her claim as beneficiary to the proper officers of the society, and, it is claimed, the complainant also presented her claim to the society, claiming to be entitled thereto as the widow of said deceased. On or about August 1?, 1904, the executive committee decided that the defendant, Catherine Coston, was entitled to the money, and ordered the same to be paid to her. It does not appear that any appeal was taken from that decision. If there was it could not have been heard before this suit was brought, as the bill was filed October 6, 1904.

The by-laws, rules, and regulations of the society contain the following provisions:

“ Section 2. The Great Camp shall be the highest tribunal of the order. * * * It shall have the power when an appeal is made under the laws of the order, from the actions or findings of the executive committee, to decide as to the validity of all death claims, or any other claim which a member or the beneficiary of a member, may have against it, and its decisions shall be final and binding upon every member and his beneficiary; and no suit at law or in equity shall be commenced or maintained by any member or beneficiary against it until every remedy provided by its laws has been exhausted. * * *
“Section 76. The executive committee shall have power to pass on all death claims, * * * and the said committee shall try, hear, and decide upon the justice or validity of such claim and such decision shall be binding on same unless an appeal is taken to the Great Camp. The notice of the appeal from the decision of the committee must be filed with the Great Record' Keeper within 60 days thereafter. The decision of the Great Camp in all such cases shall be final, and no suit in law or in equity shall be commenced or maintained by any member or beneficiary against the Great Camp until every remedy provided by its laws has been exhausted. * * *
“ Section 83. No beneficiary or endowment certificate shall be made payable to any person, other than the wife, children, dependent, mother, father, sister, or brother of the member, nor can any certificate be transferred by a member to any other person than the above, and no transfer of a certificate will be binding on the order unless the member shall make such change as hereinafter provided, and consent given thereto by the Great Record Keeper. In case a member desires to change the beneficiary named in his certificate he shall make a written request therefor, and deliver the same with his certificate and the sum of $1 to the record keeper of his tent. On receiving such written request and the fee therefor, the record keeper shall forward the same to the Great Record Keeper, who shall thereupon, if consent is' given, issue a new certificate bearing the same number as the one surrendered.”

It is claimed by complainant, and denied by defendants, that before and after his marriage the deceased promised to transfer the insurance to her, and that he had told her that he had done so, and that in reliance upon this, she had herself paid the dues and assessments. Counsel for complainant say there are three questions involved:

First. Did the complainant by her proofs establish an equitable and legal right to the insurance in controversy ?

Second. Should the testimony of complainant be excluded as being equally within the knowledge of the deceased ?

Third. Did complainant lose her rights to the insurance by not appearing before the committee of the order, or taking an appeal from this order or judgment ?

To which counsel for the defendant the fraternal order adds another involving the following defenses:

(a) That under defendant’s laws complainant had no interest in the benefit fund.

(6) That complainant failed to exhaust her remedy through the laws of defendant order,

(c) That the fund is an exempt fund beyond the process of the court, and a court of equity has no jurisdiction to enjoin defendant order from paying it to the beneficiary designated in the certificate. Citing Hunt v. Branch Circuit Judge, 141 Mich. 423.

A disposition of the first of these questions will make a consideration of the others unnecessary. The recollection of the witnesses as to the statement made by deceased is-faulty, but giving full" effect to the testimony offered on the part of the complainant, the most that can be said of it is that complainant made some payments, relying upon a statement of her husband that he would give or assign or will the certificate of insurance to her. As a matter of fact he did none of these things. He never requested the defendant order to make the change. It is claimed by complainant that he made a demand of the policy of his mother, and.she refused to give it up. This claim is based upon a statement that her husband said he had made such a demand. No witness was called who heard such a demand made. The testimony given was hearsay. The persons who would know whether such a demand was made tell a very different story. The sister of deceased testified to hearing a conversation between his mother and her brother in which he said:

“That they [referring to his wife and his mother-in-law] had been at him constantly to change his policy, and he said that owing to the fact that he had taken it out in his mother’s name before he was married, and was married very young and had some younger brothers and sisters in the family, he felt as though he owed her something for the fact that she had to bring us up and give us an education. That they wanted him to change his policy, and he said, ‘No, he never would; he had made it out in his mother’s name, and he would never change it.’ ”

The mother and the father of the deceased both corroborated this statement. Peter Visner, a disinterested witness, testified that deceased told him in 1902 or 1903 that his policy was payable to his mother “because she deserves it.”

It is significant in this connection that deceased never indicated by letter or in any other way to the fraternal order that he desired to change the beneficiary. It is said by the solicitors for complainant that the minority opinion in Great Camp K. O. T. M. v. Savage, 135 Mich. 459, ought to control the case in favor of complainant. An examination of the cases shows they are easily distinguishable. In that case a bill of interpleader was involved. The defendant order made no contest. Here it makes a. contest and insists that no liability either legal or equitable attached to it in favor of complainant. In that case Mrs. Savage had in fact been named as a beneficiary in a. certificate, and a change was made without her knowledge or consent. Here the most that can be said is that deceased said he would give, assign, or will the certificate of insurance. In that case if all the testimony offered was competent it established the claim of the wife. In this case we think it fails to do so.

The decree is reversed, and one may be entered here in favor of the defendants, with costs.

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


author: Moore, J.

text:
    CITY OF DETROIT v. JACOBS.
    Taxation — Assessment — Mortgages — Joint Ownership — Husband and Wipe — Action for Tax.
    Where a mortgage executed in favor of H. J. and A. J., “his wife,” is assessed against them jointly, a claim by the wife, in an action against them to recover the tax, that she and her husband are several owners and should have been so assessed under section 3847, 1 Comp. Laws, constitutes a mere objection that the wife’s assessment, because of her interest, is too high, and is available only on objection before the board of review. (Section 3899, 1 Comp. Laws.)
    Error to Wayne; Brooke, J.
    Submitted June 13, 1906.
    (Docket No 93.)
    Decided July 23, 1906,
    Assumpsit by the city of Detroit against Henry Jacobs and Agnes Jacobs for taxes. There was judgment for plaintiff on a verdict directed by the court, and defendant Agnes Jacobs brings error.
    Affirmed.

      Malcolm McGregor, for appellant.

      Frank F. Dor emus (Timothy F Tarsney, of counsel), for appellee.
   Moore, J.

The defendants are husband and wife. In April, 1892, they took from Harlow P. Davock a mortgage on real estate to secure the payment of $14,600. In April, 1893, they took another mortgage for $200. These mortgages recite that “Henry Jacobs and Agnes Jacobs, his wife,” are parties of the second part. In 1901 these mortgages were assessed against Henry and Agnes Jacobs. In 1902 and 1903 they were assessed in the same way. No part of these taxes were paid. In May, 1904, the city commenced this suit against the defendants to recover the tax. The court directed a verdict against the defendants for the full amount of the tax with interest. The wife has brought the case here by writ of error.

It is her claim that the taking of the mortgages in the name of the husband and wife did not make them joint tenants, or tenants by entireties; that she held her property interest as though she were sole, citing Wait v. Bovee, 35 Mich. 425. She further claims, in the absence of testimony to the contrary, the law presumes that each defendant contributed one-half of the mortgage fund, citing Newlove v. Callaghan, 86 Mich. 297; Campan v. Campan, 44 Mich. 31; Luttermoser v. Zeuner, 110 Mich. 186; also that the interest of the parties being distinct and separate, the wife is not liable for the tax on her husband’s interest, citing section 8690, 3 Comp. Laws, which provides that the property of a married woman shall “not be liable for debts, obligations and engagements of her husband.” The cases cited by counsel are not conclusive of the question involved in this case. In the first of these cases it was held that a joint mortgage given to husband and wife for money furnished equally by them, did not give to the wife who survived the husband, the whole of the mortgage. To the same effect, so far as the decision is material here, is Luttermoser v. Zeuner, supra. In Campan v.' Campan, supra, it was held that where lands are conveyed to two or more persons, and the instrument is silent as to the interest which each is to take, the presumption is that their interests are equal, but this is but a presumption and may be overcome by proof.

It is said that if the assessors had followed section 3847, 1 Comp. Laws, there would have been no trouble. That section provides:

1. “ The assessors shall estimate the true cash value of all the personal property of each person.”

2. “ Two or more persons not being copartners, owning personal property in common, may each be assessed severally for his portion thereof.”

3. “Property assessed to one other than the owner, shall be assessed separate from his property and shall show in what capacity it is assessed to him, whether as agent, guardian or otherwise.”

How are the assessors to become possessed of the information to act intelligently under this section ? Can they do better, in the absence of information other than that contained in the instrument, when assessing mortgages, than to assess them to the persons named as mortgagees ? While the presumption doubtless is in the absence of proof that each of the mortgagees owns an equal interest, it is a presumption which may be overcome. It will be observed that the language of the statute is, “may each be assessed severally. ” It does not follow that the interest of each must be severally assessed. In this case the assessments were made against the persons named as mortgagees. No one appeared before the assessors or before the board of review to suggest that this was an improper assessment, or to say that the interests of the persons named in the mortgage were not joint interests, and to ask that the interest of each should be assessed separately. It is said the defendants were under no obligation to make these suggestions or to appear before a board of review; that the assessors were without jurisdiction to assess the wife for anything more than her interest; that they should have known her interest was several; that the statute makes it their duty to assess her interest separately. Section 3899, 1 Comp. Laws, provides, among other things:

“ In any suit or proceeding to enforce or set aside any tax, such tax shall be held illegal only for one of the following reasons:
“First. That no law authorizes such tax;
“ Second. That the person or persons appointed to decide whether a tax shall be raised under a given law, have acted without jurisdiction or have not imposed the tax in question. * * * ”

It must be conceded that the owners of these mortgages should be assessed because of such ownership. The persons having jurisdiction to make the assessment were the assessors. It is conceded they had jurisdiction to assess Mrs. Jacobs one-half the amount of these mortgages, and that she ought to pay taxes thereon. It is insisted she ought not to pay more than this. This is but another way of saying that her assessment, because of her interest, was too high. Certainly the assessors had jurisdiction to make some assessment. The owners of these mortgages knew they were assessable. They also knew what the interest of each was therein. They were bound to take notice of any assessment made against them, and to appeal from it to the board of review if they deemed it unjust. They could not remain silent knowing that, if the assessors did their duty, the mortgages would be assessed, and naturally, to the persons named as mortgagees, and later escape the payment of taxes entirely. See Williams v. City of Saginaw, 51 Mich. 120; Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510; Township of Caledonia v. Rose, 94 Mich. 216, and the many cases cited therein; Michigan Savings Bank v. City of Detroit, 107 Mich. 246.

The judgment is affirmed.

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


text:
    PEOPLE v. BRONNER.
    1. Intoxicating Liquors — Sales to Minors — Partnership— Liability of Partner.
    A partner is not criminally liable for a sale of liquor to a minor by his partner though he was present and in a position to see what was going on when the sale was made.
    2. Same — Defenses—Good Faith.
    Good faith belief on inquiry of the lawful age of the person to whom the sale was made is a defense to a charge of selling liquor to a minor.
    Error to Cass; Carr, J.
    Submitted June 14, 1906.
    (Docket No. 97.)
    Decided July 23, 1906.
    John W. Bronner and Jacob Herold were convicted of violating the liquor law, and each sentenced to pay a fine of $100.
    Affirmed as to respondent Bronner, and reversed as to respondent Herold.

      James H. Kinnane, for appellants.

      George M. Fields, Prosecuting Attorney, for the people.
   Moore, J.

The respondents were indicted for selling intoxicating liquors to a minor. They were tried by a jury and convicted. The case is brought here by writ of error. Thirty-four assignments of error are urged. The regularity of the grand jury is attacked. The validity of the indictment is questioned. The appointment of an attorney to assist the prosecuting attorney is said to be error. Exceptions are urged to the admission of testimony, to the refusal to give certain requests, and to many portions of the general charge of the court.

With reference to the proceedings before the grand jury, the validity of the indictment, the regularity of the grand jury, and the assistance rendered the prosecuting attorney, we shall content ourselves by saying the record does not present a case where a reversal should be had, growing out of those questions. As to the’requests to charge, some of them might well have been given, but the subject-matter thereof was fairly covered by the general charge. There are, however, two portions of the general charge which call for more detailed discussion. At this; point some statements of fact are essential.

The respondents are partners. The respondent Bronner made a sale to a minor in the presence of the other-respondent. It is claimed the minor said he was past 21 years of age, and that his statement was believed by Bronner. It is also claimed the respondent Herold had nothing to do with the sale, and knew nothing of it.

In his general charge the court, among other things, instructed the jury as follows:

“ Now, as to the defendant Herold, it is claimed in this-case that the defendant Herold did not furnish any liquor to the minor. It. is, however, undisputed that he was a partner in the saloon. If you believe from the evidence beyond a reasonable doubt that Herold was close enough to Bronner when the beer was furnished to Wiley that he noticed it or could see it, and see Wiley, that is sufficient. It is not necessary for Herold to hand out the glass of liquor himself to the boy. That could be done by Bronner and Herold be equally guilty. If you believe beyond a reasonable doubt the evidence of the people’s witnesses regarding the place and position of Herold to his partner, Bronner, when Bronner furnished the beer to the minor, then the question of the possible ignorance of Herold makes no difference, as he would be equally guilty with Bronner. If the prosecution has satisfied you beyond a reasonable doubt that Herold stood where they claimed he stood at the time the beer was furnished to the minor, it was impossible for him not to know it unless he lacked some of his senses or was willfully ignorant. * * *
“ The first proposition that Wiley is a minor is undisputed. The second proposition that he obtained the beer in the saloon of the defendant on the day alleged is undisputed. This makes out a clear prima facie case against the defendant Bronner and a clear prima facie case under the statute against Herold, if you believe from the evidenee that he was as close when the liquor was furnished as is claimed by the people’s witnesses.
“ The statute itself presumes conclusively that the defendants Bronner and Herold intentionally violated the law. As I have before indicated, they can rebut this presumption, if they can, by showing that he was not a minor, or showing that his appearance was such that they were warranted in good faith as prudent, cautious, and honest men to believe that he was of age, The burden of proof of these facts, however, is upon the defendants. It is an affirmative defense, and the burden of proof is upon the liquor seller to show any and all absence of intent.”

This is not the rule as stated by this court in People v. Welch, 71 Mich. 548 (1 L. R. A. 385). See, also, People v. Hughes, 86 Mich. 180, and People v. Curtis, 129 Mich. 1. And the conviction as to Herold should be set aside.

Near the close of the instruction the court gave the following request of the defendant Bronner:

“The proof by the people in this case of the sale of liquor makes a prima facie case against Bronner; that is to say, that if the question of intent is not rebutted or overcome by the testimony introduced on behalf of the defendant Bronner, then your verdict should be guilty. But, as I have already stated, if you find from the evidence that said Bronner had good reason to believe and did believe that the said Wiley was of the age of 21 years, then it is your duty to acquit.
“A minor who is approaching his majority might have the appearance of being 21 years old, and if, on being inquired of, he shall assert that he was of full age, a dealer might in good faith sell him liquor without any intention of violating the law. If this be your conclusion in this case, then your verdict should be ‘ Not guilty.’ ”

It is conceded that Bronner sold the liquor to the minor, and evidently the jury did not believe that he sold it to him in good faith upon the belief that he was of age.

We think this correctly stated the law as applicable to . the defendant Bronner, and as to him the conviction should be affirmed.

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


author: Montgomery, J. Grant, J.

text:
    PEOPLE v. HARPER.
    1. Criminal Law — Trial—Order of Proof.
    Where, on a trial for murder in which the contest is over the identity of the murderer, the court refuses to require the prosecuting attorney to call the only person claiming to be an eyewitness to the tragedy, it is error to require the production of such witness and take her testimony after both parties have rested and after defendant, by producing evidence tending to show her complicity in the crime, has furnished an incentive to her to color her testimony.
    3. Witnesses — Impeachment—Bias—Reward.
    On a trial for murder it is error to refuse to permit a witness for the prosecution to be asked if he expects to share in the reward offered for the conviction of the murderer.
    3. Same — Foundation for Impeaohment.
    Where a question to a witness of respondent concerning a statement made by a witness for the prosecution is overruled because the proper foundation has not been laid, it is reversible error to subsequently refuse to allow the foundation question to be put to the prosecution’s witness on the ground that the whole matter has been previously covered.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted June 14, 1906.
    (Docket No. 99.)
    Decided July 23, 1906.
    Floyd S. Harper was convicted of murder in the first degree,. and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      Fred H. Aldrich {Louis H. Wolfe, of counsel), for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Frank F. Bumps, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the crime of murder. The crime imputed to him was the murder of Patrolman John P. Daly on the 17th day of November, 1904. That a crime was committed, by some person is not disputed. The question of fact about which the controversy centered was the identity of the murderer. In this cause Floyd S. Harper, together with his brother, William Zach Harper, is charged in the same information with the murder of John F. Daly, a police officer of the city of Detroit, on the evening of November 17, 1904. On that night at about 11 o’clock Patrolman John F. Daly, while on duty, and as he was about to enter a vacant lot in the rear of the buildings numbered 77 and 79 on Michigan avenue, occupied, respectively, as a jewelry and a paper store, received a bullet wound from which he died almost immediately afterwards. Two shots were heard immediately before the officer fell with 'the wound from which he died. Two men were observed running from the scene of the tragedy immediately after the shooting. But one person claimed to have been an eyewitness of the tragedy. A woman known as Queenie Herndon claimed that she was talking with the officer for a number of minutes on the opposite side of the street from the opening in the fence through which he entered the vacant lot, and that she spoke to him just before he entered this lot, and received an answer from him; that immediately after the officer answered her she heard the shots fired, and saw him fall. This woman also claimed that one of the men who ran from the scene of the tragedy ran against her and spoke to her. After leaving the place where the officer was shot, one of the men started in an easterly direction through the alley back of the vacant lot; the other crossed Wayne street to an alley running parallel with Lafayette avenue, and, just as he entered this alley, was joined by the other man.

■ It is the theory of the prosecution that the man who ran . east after shooting, along the alleys, as above mentioned, went around a flatiron block, and returned through the continuance of the said alley running parallel with Lafayette avenue, joining the other party who ran directly across Wayne street, as above mentioned. One of the men entering the said alley running parallel with Lafayette avenue ran across a vacant lot between said alley and Lafayette avenue, going out on Lafayette avenue; the other continued through this alley for about two blocks, then turned toward Michigan avenue one block, and continued in a westerly direction along the alley between Howard and Abbott streets, until he was within about 15 feet of Third-street, when he turned and shot one Herbert H. Pickell, who was pursuing him, inflicting upon him a, serious wound. As the party who ran through these several alleys was passing through the alley between Wayne and Cass streets, he passed one Phelps, who was standing in this alley talking with a girl by the name of Ethel Davis. He shot twice at the man Phelps and passed on. As he was crossing Cass street one Herbert H. Pickell, a special officer for the Michigan Central Railroad Company, saw him running and pursued him until he was shot, in the manner above mentioned. He was also seen while crossing Cass street by one Michael Goodwin, who was in company with Pickell, and as he emerged from the alley between Wayne and Cass streets passed within a few feet of one Joseph P. Gaffney, and shot at him as he was passing. As he was emerging from the alley between Cass and First streets he passed within a very few feet of one William Collett. One Ella Fox saw the two men as they were entering the alley between Wayne and Cass streets, but got an indistinct view of them. A witness, Mary Carney, saw the two men as they ran from the vacant lot where the officer was shot.

Immediately after the shooting the officers interviewed various persons who claimed to have seen the men running from the scene of the tragedy, and the whole police department of the city were alarmed, and were ordered to look for suspicious characters in the city, who might be the murderers of Officer Daly. A description was given of said parties, made up of descriptions received by the officers immediately after the shooting from parties claiming to have seen the men. running from the scene of the ■tragedy. These descriptions were of a tall man and a short one. The tall man was supposed to be a colored man, and the short man was supposed to be a white man. By instructions of Lieutenant Walpole the police arrested several colored men on suspicion the same night of the shooting. Upon examination of the premises, it was found that a window in the back part of the paper store had been raised a few inches, evidently by a sharp instrument like a chisel, and a carpenter’s chisel was found on the ground near said window which was put in evidence in the cause. About a week prior to this tragedy a carpenter shop owned By one Marentette, at No. 123 Larned Street West, in the city of Detroit, was entered by burglars and a chisel stolen therefrom, which was identified by Alfred Robarge, an employé of the said Marentette, as his property. No at"tempt was made on the part of the people in the trial of this cause to explain to the jury where the chisel' above mentioned was procured, or to explain anything of the Burglary by which the same was secured from the said carpenter’s shop, all of the facts in relation thereto being Brought out by the defense. Back of the said jewelry store is a narrow room, connected with the said paper :store. On the evening of the said tragedy at about a quarter to 6 o’clock a large colored man was seen by William O. Ross, who had charge of the said paper store, looking into the windows of the said paper store in such a manner as to attract his attention. Said Ross went from the back part toward the front of his said store, when the said colored man entered the store and purchased .some cheap paper and assumed a position in the store where he could command a full view of the said narrow room back of the said jewelry store.

Immediately after the night of the tragedy the said Queenie Herndon was taken by the officers and detained at police headquarters as a witness for the people, until after the examination of the respondents upon the charge of the said murder of the said Officer Daly. At said examination she claimed that the man who ran against her wore a moustache, and refused to identify Floyd S. Harper as such person. Very soon thereafter she was discharged from the police headquarters, her name was not. put upon the information as a witness, and the prosecuting attorney refused to call her as a witness in said cause. The attorneys for the respondent objected to the prosecuting attorney proceeding with other branches of the cause before he had proven the corpus delicti therein, stating among other grounds of such objection that the said Queenie Herndon had not been sworn, which objection was overruled, and exception taken.

At the close of the people’s testimony counsel for the defendant moved that the respondent be discharged by reason of the fact that the woman Queenie Herndon, an eyewitness, as she claimed, of the tragedy, had not been called. Testimony had theretofore been introduced which showed that she had made such claim. The testimony of the defendant had a tendency to show, and it was the theory of the defendant, that this Queenie Herndon, who was shown to be a disreputable character, was connected with the murder of the said Officer Daly; that she had been watching in the neighborhood of the scene of the tragedy for a considerable time theretofore; that one known as Walter Q. Christine, whom she claimed to be her husband, appeared in the neighborhood very soon after the shooting, and met her in that vicinity. After the defense had rested and the people had introduced their testimony in rebuttal and rested, the court ordered said Queenie Herndon to be produced in court and sworn in said cause, and she was produced and sworn against the objection of the said respondent, to which action on the part of the said court respondent excepted.

In most cases the order of proof is within the discretion of the trial judge, but when it is manifest that prejudice has resulted from a failure to observe the order which the law points out, we should not permit a verdict to stand. If the reasons for declining to call Queenie Herndon in order were valid when the court ruled that the prosecution was justified in leaving her off the stand they were equally forceful after the respondent’s defense had been developed, and there was the additional reason that the defense, by attacking this witness and by developing the theory that she was herself concerned in the crime, had furnished an incentive to her to color her testimony against the respondent. The case was one in which an observance of the proper order of proof was obviously of vital importance.

On the cross-examination of one Phelps, a witness for the people, he was asked in substance if he expected a portion of a $1,000 reward if the respondent was convicted. The question was excluded. This was error. It was competent to show the interest of the witness.

One Pickell was an important witness for the people, and identified the respondent as one of the men seen by the witness fleeing from the scene of the crime. One Prank Mahon, a reporter for the Evening News, was called and asked as to whether the witness Pickell had made statements relative to his ability to identify the respondent which were inconsistent with those made on the stand. Objection was made that the proper foundation had not been laid, and the objection was sustained. The court thereupon very properly stated:

“ If counsel for defendant believe that they can impeach his testimony, inasmuch as he is one of the witnesses as to the identity of this defendant, I think that in fairness and in justice he should be permitted to go upon the witness stand. Better call him. You may step aside, Mr. Mahon, for the present.”

Later Pickell was recalled, and the following occurred:

“Q. At an interview between yourself and Mr. Mahon, November 25, 1904, between the hours of 7 and 8 o’clock, in your room at Harper Hospital, did you state to Mr. Mahon as follows: ‘ I am positive Floyd Harper is the man who shot me, but I can’t swear to it ? ’
“Mr. Bumps: Justa moment. If the court pleases, I object to this as having been all gone over, this same article, and these same questions asked this witness before.
“Judge Aldrich: I think I asked him the question before myself, but I didn’t know Mr. Mahon was the man.
“Mr. Bumps: This identical question has been asked this witness, and all other questions concerned in this article, which my brother now has in his hand.
“ Judge Aldrich: But I did not ask with reference to Mr. Mahon.
The Court: Mr. Reporter, will you please look back to this question and answer that was asked this witness on cross-examination ? ( Last question read by the stenographer). ,
“ Mr. Bumps: That is objected to.
The Court: I think I will sustain the objection.
“ Judge Aldrich: I desire an exception.”

It is clear that one or the other ruling was prejudicial error. It is manifest that the respondent’s counsel was endeavoring to get the benefit of a qualifying statement of Mr. Pickell. When the witness Mahon was asked to give the conversátion the objection was made that the proper foundation was not laid. When an attempt was made to comply with the court’s suggestion that the foundation be laid the objection that the whole ground had been traversed prevailed. The other questions presented are not likely to arise on a new trial.

For the errors pointed out the conviction is set aside, and a new trial ordered.

Blair, Ostrander, and Moore, JJ., concurred with Montgomery, J.

Grant, J.

I concur on the last two points of the opinion.


author: Carpenter, C. J.

text:
    FEENSTRA v. TANIS.
    Exemptions — Liabilities Enforceable Against Exempt Property — Debts for Purchase Price.
    Cows, in addition to the two specifically exempt under subdivision 6, section 10322, 3 Comp. Laws, when kept by a farmer for use on his farm, are exempt to the value of $250 under subdivision 8 of the same section, and may therefore be taken on execution for their purchase price under section 10324.
    Case made from Ottawa; Padgham, J.
    Submitted June 19, 1906.
    (Docket No. 58.)
    Decided July 23, 1906.
    Replevin by Arthur Feenstra and Jane Feenstra against Edward Tanis. There was judgment for plaintiffs, and defendant appeals.
    Reversed, and judgment entered for defendant.

      Smedley & Corwin, for appellant.

      Sooy & Heck, for appellees.
   Carpenter, C. J.

Plaintiffs are husband and wife. They own a farm and carry on the business of farming ;and market gardening. About one year before this suit was commenced plaintiff Arthur Feenstra, who then, owned several cows, purchased three additional cows from ■one Berkompas. Subsequently Berkompas obtained a judgment against said Arthur Feenstra for the purchase price of said three cows. Execution was issued upon said judgment and placed in the hands of defendant, who was a constable, with directions to levy the same. Said defendant, as constable, levied upon the three particular ■cows sold by Berkompas to said Feenstra, and upon no •other property, though said Feenstra was a householder living upon his farm and had at that time other cows and animals. Defendant made no inventory or appraisal of' the property levied upon. Plaintiff thereupon brought this suit in replevin to recover possession of said cows. The case was tried in the lower court without a jury. The court made a finding of facts, from which we have taken the foregoing, and rendered a judgment for the plaintiffs. Defendant asks us to reverse that judgment. The law controlling this case is contained in the following-sections of the Compiled Laws:

“Sec. 10322. The following property shall be exempt from levy and sale under any execution, or upon any other final process of a court; * * *
“Sixth. To each householder, ten sheep, with their fleeces, and the yarn or cloth manufactured from the same; two cows; five swine, and provisions and fuel for comfortable subsistence of such householder or family for six months. * * *
Eighth. The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness or other things, to enable any person to carry on the profession, trade, occupation or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars. * * *
“Sec. 10324. The property exempted in the subdivision of which this act is amendatory [subdivision 8 ] shall not be exempt from any execution issued upon a judgment rendered for the purchase money for the same property. * * *
“Sec. 10328. Whenever the defendant in an execution shall have cows, sheep, swine, or other animals or articles, some of which are exempt by law from sale on execution, and some of which are not so exempt, the officer may take all of such horses, cows, sheep, swine or other animals or articles into his possession, and the defendant or his authorized agent may, immediately, on being notified of the levy, select so many thereof as are exempt by law from execution, but if the defendant be absent, or neglect to make such selection on being notified, the officer shall make the same for him.”

The trial court decided that the execution should, in accordance with section 10328, have been levied upon all the cows of plaintiffs, and that they should have been permitted to select therefrom the cows which are exempt under subdivision 6 of section 10322, above quoted, and because this was not done plaintiffs were entitled to recover. This was clearly correct (see Parker v. Canfield, 116 Mich. 94), unless the cows were by virtue of section 10324 liable to seizure on the execution issued upon the judgment rendered for the purchase money. If they were so liable, they were properly seized, and defendant was and is entitled to judgment. Lillibridge v. Walsh, 97 Mich. 459. The sole question in controversy, then, is this: Were the cows liable to be taken on an execution issued upon a judgment for the purchase money by virtue of section 10324. This depends upon whether they are exempt from execution by virtue of subdivision 8, for section 10324 applies only to property exempt in that subdivision. It is to be inferred from this record that plaintiffs kept these cows for use on their farm. In Hutchinson v. Whitmore, 90 Mich. 255, this court held that ‘ ‘ hay, oats, corn, a yearling steer, a heifer and two spring calves” used by the plaintiff on his farm were exempt under subdivision 8 as “stock to enable” him to carry on his business of farming. The only ground upon which it may be said that the language of subdivision 8 exempts a steer, heifer, and calves, and does not exempt plaintiffs’ cows, is. that two of those cows are exempt under subdivision 6. This distinction is unimportant. In Stilson v. Gibbs, 46 Mich. 215, it was held that the wheat of a farmer was exempt under subdivision 6 as provisions for the comfortable subsistence of his family, and under subdivision 8 as seed to enable him to carry on the business of farming. If the distinction under consideration is sound, a dairyman who is a householder, whose entire property consists of several cows, is entitled to an exemption of only two cows (for his cows are exempt under subdivision 6), while a dairyman who is not a householder is entitled to an exemption of cows to the value of $250 (for his cows, not being exempt under subdivision 6 are exempt under subdivision 8). Reasoning which compels us to conclude that subdivision 8 describes tbe cows of a dairyman wbo is not a householder, and does not describe the cows of a dairyman who is a householder, and which results in giving to the former a greater exemption than to the latter, cannot be sound. I conclude, therefore, that Hutchinson v. Whit-more, supra, authoritatively determines that the cows in question were exempt under subdivision 8, and were properly seized upon the execution, and that the facts shown upon this record entitle defendant to a judgment.

This conclusion does not, as plaintiffs contend, deprive them of the exemption of two cows given them by subdivision 6. Their right to.,that exemption is fully recognized. A farmer who is also a householder owning several cows for use on a farm is entitled to an exemption of two cows under subdivision 6. In addition to this he is entitled to an exemption of $250 worth of the property described in subdivision 8. Included in this latter property are said cows. In other words, the cows kept for use on a farm, if the farmer is a householder, are exempt under both subdivisions 6 and 8. As plaintiffs’ cows are exempt under subdivision 8, they are liable to execution under section 10324, even though they are also exempt under subdivision 6.

No other point demands discussion. Judgment should be reversed, and a judgment entered for defendant, with costs of all the courts.

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


text:
    BROWN v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS.
    1. Constitutional Law — Equal Protection of Law — Licensing Transient Merchants — Exceptions.
    Act No. 214, Pub. Acts 1905, providing for licensing transient merchants, and providing that the council of any city or village may suspend its operation in any particular case, violates section 32 of article 6 of the Constitution of Michigan and section 1 of the 14th Amendment of the Constitution of the United States guaranteeing equal protection of the laws.
    2. Same — Statutes—Partial Invalidity — Construction — Dis- . REGARDING INVALID PORTION.
    The invalid proviso cannot be eliminated by the court and the remainder of the act permitted to stand, since it cannot be said that the legislature would have passed the act without the proviso.
    Mandamus by William B. Brown, prosecuting attorney of Kent county, to compel William J. Stuart, judge of the superior court of Grand Rapids, to reinstate a prosecution for the violation of Act No. 214, Pub. Acts 1905.
    Submitted June 26, 1906.
    (Calendar No. 21,784.)
    Writ denied July 23, 1906.

      Ward & Brown, for relator.

      Knappen, Kleinhans & Knappen, for respondent.
   Moore, J.

This is a petition for mandamus, brought by the prosecuting attorney of Kent county, to compel the respondent to reinstate a prosecution under Act No. 214, Pub. Acts 1905.

Y. Matsuhara and Frank K. Ellis were arrested under this act upon information filed by relator, and upon motion to quash were discharged by respondent on the ground that the statute in question is illegal and unconstitutional in several particulars. The act in question is entitled:

“ An act to provide for licensing and regulating the business of transient merchants, to prevent the fraudulent sale of goods by such transient merchants, to provide a lien on the goods of such transient merchants for the license fees prescribed by this act, and to provide penalties for the violation thereof.”

In section 1, the act attempts to define a transient merchant as follows:

“A transient merchant, within the meaning of this act, is any person or corporation who shall engage in, do or transact any temporary or transient business in any township, city or village in this State, in the sale of goods, wares, and merchandise, and who, for the purpose of carrying on such business, shall hire, lease, or occupy any building or room, including rooms in hotels, for the exhibition and sale of such goods, wares, and merchandise.”

In section 2 the license fees are fixed according to the size of the different classes of municipalities, that for the class including Grand Rapids being fixed at $20 per day for the first 10 days' and $10 per day thereafter. Appended to section 1 is the following proviso:

Provided, That any city or village council may, by a two-thirds vote of all the members elect, suspend the provisions of this act in any specific instance or case.”

It is claimed this act is illegal and unconstitutional for the following reasons:

1. The title to the act is not broad enough, and hence violates section 20 of article 4 of the Constitution of the State.

2. The license fees fixed by the act are' unreasonable and prohibitive, and therefore violates section 32 of article 6 of the Constitution of the State of Michigan.

3. The law provides for discrimination and is unequal in its application to members of the same class, and therefore violates section 32 of article 6 of the Constitution of the State of Michigan, and section 1 of article 14 of the Amendments to the Constitution of the United States.

In our view of the case, it will not be necessary to consider all of these objections to the act, as we think the third reason stated is conclusive. The provision for the payment of the license if read in connection with the proviso which gives the municipality authority to relieve favored individuals from its payment is a violation of that provision of the Fourteenth Amendment of the United States Constitution reading:

“Nor [shall any State] deny to any person within its .jurisdiction the equal protection of its laws.”

See Gulf, etc., R. Co. v. Ellis, 165 U. S. 150; Yick Wo v. Hopkins, 118 U. S. 356; State v. Conlon, 65 Conn. 478 (31 L. R. A. 55).

The only answer relator makes to this objection is that—

“The proviso is no essential part of the act. * * * That a little judicial surgery applied by this court to said proviso, whereby the same shall be removed, will be a wholesome, and proper thing to do.”

We cannot accept that argument. We cannot say that without the proviso the law ever would have been en.acted.

The application for the writ is denied.

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


author: Hooker, J.

text:
    ATTORNEY GENERAL, ex rel. BEADLE, v. ARNOTT.
    1. Taxation —Corporations—Specific Taxes —Basis—Capital, Stock — Power of Legislature.
    It is competent for the legislature to fix the amount of the au- ' thorized capital stock of a corporation as the basis of computation of a specific tax under section 10, article 14, of the Constitution.
    2. Constitutional Law — Class Legislation — Statutes Locally Applicable.
    Act No. 39, Pub. Acts 1883, as amended, providing for the organization of corporations to develop the water power of St. Mary’s river and conferring upon them certain privileges-.not enjoyed by other waterpower companies in the State, is-not class legislation, though only locally applicable.
    3. Same — Legislative Power — Delegation—General or Specific Tax — Privilege to Elect.
    Section 14, Act No. 231, Pub. Acts 1899, conferring upon corporations organized under the act of which it is amendatory the privilege of electing each year whether they will pay a, •certain specific tax or submit to local taxation under the-general law, is not invalid as a delegation of legislative power to the corporations.
    4. Statutes — Subject and Title — Validity.
    The title of Act No. 231, Pub. Acts 1899, disclosing a purpose to-amend an act the title of which is set out in full, is broad, enough to support section 14 therein, amending a similar-section in the original act prescribing the manner of taxing-corporations organized under the original act.
    Certiorari to Chippewa; Steere, J.
    Submitted June 26, 1906.
    (Calendar No. 21,772.)
    Decided July 23, 1906.
    Mandamus by John E. Bird, attorney general, on the relation of Charles S. Beadle, to compel John E. Arnott, city assessor, and the board of review of the city of Sault: Ste. Marie, to place certain corporate property upon the-tax roll. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Sharpe & Handy, for relator.

      John W. Shine, City Attorney, Oren, Webster & Oarleton and Shaw, Warren, Cady & Oakes (Benton Hanehett, of counsel), for respondents.
   Hooker, J.

The attorney general applied to the circuit court for a mandamus to compel the local assessor at Sault Ste. Marie to assess the property of the Michigan Lake Superior Power Company, situated in that city, upon the same basis as other property. The writ was denied upon the hearing, and the relator has brought the proceeding to this court by certiorari. The right of the relator to such an order depends upon the construction or validity of the law under which said power company was organized, viz., Act No. 39, Pub. Acts 1883, as amended by Act No. 93, Pub. Acts 1887, and Act No. 231, Pub. Acts 1899, said company being organized after the latter amendment took effect. It seems to be conceded that these are general acts. Section 14 of the act of 1883 provided that every company organized under the act should pay to the State treasurer an annual tax, at the rate of 1 per cent., upon its capital stock, in lieu of all other taxes. In 1887, section 14 was amended, so that it and the act as so amended contained no reference whatever to the subject of taxes. In 1899 the provision was again amended, providing that:

“Seo. 14. Upon giving notice to the auditor general of this State and assessing officer of the township or city in -which said water power is situated, on or before the second Monday in April of any year, of the election of the company to pay specific taxes as provided in this section, each and every company organized under the provisions of this act, may pay to the treasurer of the State of Michigan, an annual tax of one per cent, on the whole amount of the authorized capital stock of such company, which tax shall be paid on or before the first Monday in July of each year and which shall be in lieu of all other general taxes upon the lands upon which said watercourse shall be located,( and which shall be appurtenant thereto and the improvements thereon.”

Acting under this statute, the company has, since 1899, paid the specific tax provided for therein, filing an election each year, and claims that right for the present year. No question appears to arise over compliance with the terms of the statute as to notice. Said section 14 is said to be unconstitutional for the following reasons, viz.:

“1. Because it violates section 11 of article 14 of the Constitution of the State of Michigan, in that it attempts to provide for a rule of taxation in the State which is not uniform.
“2. Because it violates section 12 of article 14 of the Constitution of the State of Michigan, which provides that ‘ All assessments hereafter authorized shall be on property at its cash value.5
“3. Because it purports to authorize corporations, incorporated thereunder, to elect each year whether they will pay specific taxes or ad valorem taxes, and because it attempts to delegate the legislative power of taxation to a private corporation.
“4. Because it violates section 20 of article 4 of the State Constitution, which provides that No law shall embrace more than one object, which shall be expressed in its title.’
“5. Because it grants special privileges to a private corporation in the matter of taxation, which are not enjoyed by other similar corporations.
“6. Because it grants special privileges to a private corporation as to the taxation of its property, which are not enjoyed by other property owners in the same locality.”

Three important questions are presented by this case:

(1) May the legislature fix the amount of the authorized capital stock of a corporation, as the basis of computation of a specific tax ?

(2) Is the statute in question class legislation ?

(3) Does it attempt to delegate legislative powers upon a private corporation ?

1. Section 10, art. 14, of the Constitution, provides:

“ Sec. 10. The State may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from corporations. The legislature may provide for the assessment of the property of corporations at its true cash value by a State board of assessors and for the levying and collection of taxes thereon. All taxes hereafter levied on the property of such classes of corporations as are paying specific taxes under laws in force on November 6th, A. D. 1900, shall be applied as provided for specific State taxes in section one of this article.”

The subject of specific taxes was discussed in Pingree v. Auditor General, 120 Mich. 102 (44 L. R. A. 679). It seems to be settled that a law imposing a specific tax upon an amount equaling the actual capital stock of a corporation is valid, and one reason urged for saying that such a tax based on authorized capital stock is unconstitutional, is that it is an uncertain basis, and one that may be changed at the will of the corporation taxed by reduction. The original act, No. 39, Pub. Acts 1883, requires the articles of association of such companies to state the amount of the capital stock, and the number of shares. Counsel seem to agree that this is what is meant by the term ‘ ‘ authorized capital stock ” and at first thought it would appear that this is a favorable provision from the standpoint of the State, for it taxes the entire capital stock, whether all has been called or not (see Act No. 39, Pub. Acts 1883, § 8, which provides how stock shall be paid), instead of the amount of capital actually invested, as provided in many of the laws referred to in Pingree v. Auditor General, supra. Neither provision is free from ■criticism, for if, as is suggested, the authorized capital may be less than the amount actually invested, so may be the actual capital, become so by reason of accumulated earnings allowed to remain in the business, while, on the other hand, the value of the holdings may, in either case, be much below the statutory amount upon which the tax is to be levied. Either actual or authorized capital furnishes a certain standard under the rule stated in the authorities mentioned, and a no more arbitrary one than any other similar standard of measure, and perhaps a standard no more subject to fraudulent evasion and concealment than any other. In the judgment of the legislature this was a proper standard, and we cannot say that it is not, merely because we may think that it is not entirely effective to prevent fraudulent underassessment. There are few tax laws that would stand such a test. If the law shall prove ineffective, the legislature has the power t.o change it.'

2. Is this statute class legislation ? It is admitted that this is a publip act, and that other companies may be, if they have not been, organized under this act, although the act is said to be in a way local, in that it authorizes the use of water from Lake Superior or the St. Mary’s river, and does not authorize the diversion of any other water. We cannot determine that this act was passed in the sole interest of this respondent and its projectors, or that no other canal is feasible to use water from Lake Superior, or that no canal can be constructed elsewhere than in Chippewa county under it. Nor can we say that because other statutes providing for the formation of companies to construct canals in other counties, do not confer the same privilege of a special tax, that this act is class legislation, and void. We have many laws local in character, such as laws pertaining to the taking of fish, the running and booming logs, etc. The Upper Peninsula has long been exceptional in the matter of railroad rates, and the compensation of its judiciary. See, also, Valentine, ex rel. Dudley, v. Water-Power Co., 128 Mich. 280.

3. Delegation of legislative power. The only reference to taxes in this act is in section 14 hereinbefore quoted. It authorizes the payment of a definite specific tax, but this is plainly designed as a concession to the companies, a privilege which they may accept, or omit to take the advantage of. If a company omit to signify its acceptance of this privilege, it is inferable that it would be subject to the usual ad valorem taxation.. We have no doubt of the power of the legislature to impose a specific tax, or to subject the property to an ad valorem tax, in case of a failure to pay the specific tax seasonably. It may be said that this is substantially what has been done. But whether that is technically so, or it is more accurate to say that the ad valorem tax is imposed, but subject to a right to pay a specific tax instead, it is undeniable that the law gives an option or election to the respective companies to pay specific or ad valorem taxes, as they may choose, upon compliance with the terms of the act. Many cases hold that this is not a delegation of legislative power, but the mere imposition of a condition, upon the effect to be given to the law. In Cooley on Constitutional Limitations (7th Ed.), p. 164, it is said:

“But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation cannot be forced upon the corpora-tors ; they may refuse the franchise if they so choose. In these cases the legislative act is regarded as complete when it has passed through the constitutional ■ formalities necessary to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance.”

As supporting this doctrine the learned author cites Smith v. City of Janesville, 26 Wis. 291, where it is said:

“No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute or conditional and contingent; and, if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not infrequent.”

Mr. Justice Field said, in Blanding v. Burr, 13 Cal. 343:

“Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions as the legislature, in its wisdom, may impose. They may take effect only upon the happening of events which are future and uncertain; and among others, the voluntary act of the parties upon whom they are designed to operate. They are not the less perfect and complete when passed by the legislature, though future and contingent events may determine whether or not they shall- ever take effect.”

In Locke’s Appeal, 72 Pa. 491, 498, it was said: -

“ To assert that a law is less than a law because it is made to depend on a future event or act is to rob the legislature of the power to act wisely for the public welfare. * * * Then, the true distinction, I conceive, is this: The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.”

See People v. Fire Ass’n, 92 N. Y. 311. The Federal Supreme Court considered the question in Field v. Clark, 143 U. S. 649, and while recognizing the want of authority in Congress to delegate legislative power to the President, held it proper to confide to him a discretion as to the duration of a suspension of a law.

Again, in Northern Pacific R. Co. v. Clark, 153 U. S. 252, in a case similar to the present, Mr. Justice Jackson said:,

“ This act is by its terms nothing but a tax law, and while it adopted the same rule of percentages on the gross earnings as is provided in the act of 1883, it differed from that act in not being compulsory upon the railroad companies, for it left to them the election as to which of two modes of taxation they should accept or submit to. It practically gave to the railroad companies the choice of having their property taxed as other property in the Territory, by assessment and levy, or of talcing the benefits of the act upon the terms and conditions provided therein. It was, by section 7, made a condition of the - acceptance of the act that ‘ any railroad company assessed under chapter 99 of the laws of 1883 shall, within 30 days after the passage of this act, pay into the territorial treasury the full amount of the taxes and interest due under the assessments under said laws of 1883, including taxes on both territorial and interstate earnings, before they can avail themselves of the provisions of this act.’ It was further provided that any company failing to strictly comply with the provisions of the act within the time provided should be immediately subject to assessment and taxation upon its property in the same manner as the property of individuals was assessed and taxed.”

This is substantially the same as this case, for a failure to elect makes the company liable to ad valorem tax. The law was held valid. See, also, Merchants’, etc., Bank v. Pennsylvania, 167 U. S. 461.

The case of Citizens’ Sav. Bank v. Owensboro, 173 U. S. 636, sustains a Kentucky statute, giving an option to banks to elect between different methods of taxation. Our own case of King v. Insurance Co., 140 Mich. 258, discusses this subject and cites many of the authorities mentioned, and while the act considered in that case was held unconstitutional, the distinction is plain. We are of the opinion that the law did not delegate legislative power.

We think that the act is not void by reason of a defective title. It is within the following cases, as properly within the original title: Holden v. Board of Sup’rs of Osceola Co., 77 Mich. 202; City of Detroit v. Wayne Circuit Judge, 112 Mich. 317; Common Council of Detroit v. Schmid, 128 Mich. 379; Board of Sup’rs of Chippewa Co. v. Auditor General, 65 Mich. 408; Fort Street Union Depot v. Commissioner of Railroads, 118 Mich. 340; National Loan & Investment Co. v. City of Detroit, 136 Mich. 451.

It is only necessary to add that the order of the circuit court is affirmed.

Carpenter, C. J., and McAlvay, Grant, Blair, Montgomery, Ostrander, and Moore, JJ., concurred.