text:
    PEOPLE v. THOMPSON.
    1. Indictment and Information —Statutes — Intoxicating Liquors.
    It is sufficient that an indictment for selling intoxicants to a minor charges the offense in the language of 3 Comp. Laws, § 5391, without alleging that the respondent was at the time engaged in the business of selling malt, brewed and intoxicating liquors.
    3. Intoxicating Liquors — Criminal Law — Engaging in Business-Words and Phrases.
    A single sale of intoxicating liquors constitutes engaging in the business.
    3. Constitutional Law — Statutes.
    Section 13, Act No. 313, Pub. Acts 1887, is not amended by Act No. 391, Pub. Acts 1909, so as to increase the penalty after the commission of an offense. People v. Sehoenberg, ante, 88 (135 N. W. 779).
    4. Statutory Construction — Repeal by Implication.
    If two statutes can be given full effect without conflicting with each other, or if the later act is merely affirmative, cumulative, or auxiliary and not inconsistent with the other, the repeal of the original by the later act is not implied.
    5. Same — Presumptions.
    Unless the intent to repeal is clear, no presumption exists that the legislature intended to repeal an act to which no reference is made in a later enactment.
    6. Intoxicating Liquors — Statutes—Minors.
    Act No. 160, Pub. Acts 1909, in forbidding sales of liquoi to . minors as a beverage, does not by implication repeal section 13, Act No. 313, Pub. Acts 1887, which prohibits selling liquors to any minor for any purpose.
    7. Same — Statutes—Consistenoy.
    In so far as Act No. 160, Pub. Acts 1909, is inconsistent with Act No. 391, Pub. Acts 1909 (the Warner-Cramton act) the later statute must prevail.

      8. Trial — Curing Error.
    Tha admission in evidence of the birth record of a person bearing a different name from that of the person whose birth it was material to show, is cured by charging the jury that the evidence was improperly received and should not be considered.
    9. Criminal Law — Charge to Jury — Felonious Intent.
    Prejudicial error is not committed by the trial court in charging the jury that if the respondent sold intoxicating liquors to a minor, “the law presumes he did it with a felonious Intent to violate the law; ” although the act does not, under statute, amount to a felony.
    Exceptions before judgment from Shiawassee; Miner, J.
    Submitted April 21, 1910.
    (Docket No. 135.)
    Decided May 7, 1910.
    Delbert Thompson was convicted of selling liquor to a minor.
    Affirmed.

      Odell Chapman and Austin E. Bicharás, for defendant.

      Byron P. Micks, Prosecuting Attorney, for the people.
   Stone, J.

The information in this cause was as follows:

“State of Michigan.
“The Circuit Court for the County of Shiawassee.
“ County of Shiawassee — ss.:
“Ryron P. Hicks, prosecuting attorney for said county, for and in behalf of the people of the State of Michigan, comes into said court in the May, A. D. 1909, term thereof, and gives it here to understand and be informed that Adelbert Thompson, late of the village of Laingsburg, in the county of Shiawassee and State of Michigan, heretofore, to wit, on the 16th day of February in the year one thousand nine hundred and nine, at the village of Laingsburg in said Shiawassee county, did then and there unlawfully sell to one Benjamin Lingo, who was then and there a minor under the age of 21 years, to wit, of the age of 17 years, a large quantity, to wit, three pint glasses of certain malt, brewed, and fermented liquor, called beer. being an intoxicating liquor, and the said Adelbert Thompson was not then and there a druggist, who sells liquor for chemical, scientific, medicinal, mechanical, or sacramental purposes only, nor a person whose business consists in whole or in part of the sale of drugs and medicines. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.
“Byron P. Hicks,
“Prosecuting Attorney for the County of Shiawassee.
“ [Jurat.]”

The respondent was arraigned at the May, 1909, term of the circuit court, and, standing mute, a plea of not guilty was entered by order of the court. Subsequently, at the September, 1909, term of the court, which seems to have been held after September 20th, the respondent was permitted to withdraw his plea, and a motion to quash the information was made upon the following grounds:

(1) For the reason that the information states no criminal offense under section 5391, 2 Comp. Laws, because it does not state that the respondent, at the time it is claimed he gave the liquor to the infant, was engaged in the business of selling malt, brewed, fermented, spirituous, and intoxicating liquors.

(2) For the reason that Act No. 291, Pub. Acts 1909, amends the old liquor law in such a manner as to increase, and impose upon those who violate the law, and those who may, prior to the taking effect of Act No. 291, have violated the law, further, different, and heavier penalties than those imposed by the law as it stood at the time of the alleged commission of the offense.

(3) That Act No. 160, Pub. Acts 1909, repeals Act No. 313, Pub. Acts IBS?, which includes section 5391, 2 Comp. Laws. That said Act No. 160 contains no saving clause, and the alleged offense having been committed, if at all, before the taking effect of said Act No. 160, this prosecution cannot be maintained.

The said motion was overruled, and respondent duly excepted. The trial proceeded, and resulted in the conviction of the respondent by a jury, and the case is brought here upon exceptions before sentence.

The first four assignments of error relate to the action of the court in overruling the motion to quash the information. We shall proceed to notice them in their order.

1. The information follows substantially the form contained in Tiffany’s Criminal Law (see Howell’s Fourth Edition, p. 1095), which is in accordance with the practice in this State since the passage of the act. It states the facts necessary to constitute an offense under this section of the statute, and also negatives all exceptions contained in the section. In other words, it charges the offense in the language of the statute, and that is all that is necessary. Tiffany’s Criminal Law, p. 466; People v. Curtis, 95 Mich. 212 (54 N. W. 767, 95 Am. St. Rep. 404); People v. Allen, 122 Mich. 123 (80 N. W. 991). The cases cited by respondent’s counsel, namely, People v. Soule, 47 Mich. 250 (41 N. W. 908, 2 L. R. A. 494), and People v. Journeau, 147 Mich. 520 (111 N. W. 95), do not relate to this section of the statute, and do not govern this question. The information in this case charges a sale of intoxicating liquors, and this court held, in People v. Kropp, 52 Mich. 582 (18 N. W. 368), that a single sale constituted engaging in the business within the meaning of the act then in force. We think that the learned circuit judge ruled correctly upon this point.

2. The second objection is fully answered by the recent case of People v. Schoenberg, ante, 88 (125 N. W. 779). While Act No. 291, Pub. Acts 1909, amends certain sections of the law of 1887, section 13 of the latter act, being the one in question, is not amended or changed at all. There is no merit in this objection.

3. It is further urged that Act No. 160, Pub. Acts 1909, repeals the act of 1887 (2 Comp. Laws, § 5379 etseq.) including the section in question. YYbdle section 13 of the act of 1887 makes it an offense to sell, furnish, or give to any minor, certain enumerated liquors for any purpose, it will be noted that said Act No. 160 confines the offense to selling, furnishing or giving liquors to any minor “as a beverage.” These qualifying words are in each section of the act. There is no repealing clause in the act. It stands as an independent enactment. If there is a repeal, it is by implication.

Repeals by implication are not favored. They are never permitted if they can be avoided by any reasonable construction of the statute. If both acts can be given full force without conflicting with each other, or if the later act is merely affirmative, or cumulative, or auxiliary, and not inconsistent, both must stand. People v. Hanrahan, 75 Mich. 611 (42 N. W. 1124, 4 L. R. A. 751) ; Tillotson v. City of Saginaw, 94 Mich. 240 (54 N W. 162). It cannot be presumed that the legislature intended to repeal a law when no reference is made to it in the later act, unless the intent is clear. In re Bushey, 105 Mich. 64 (62 N. W. 1036); People v. Gustin, 57 Mich. 407 (24 N. W. 156). We think that both provisions may stand, as not inconsistent.

We have already shown that section 13 of the act of 1887 is left in full force by Act No. 291, Pub. Acts 1909, known as the Warner-Oramton act. This latter act was approved June 2, 1909, while Act No. 160 was approved May 26, 1909. The Warner-Cramton act is therefore the later expression of the legislative will; and, if there is any inconsistency, the later act must govern. So in any view of the case the ruling of the circuit judge was correct.

The next 13 assignments of error all relate to the rulings of the court in receiving and rejecting evidence. We have examined the record carefully, and we are of opinion that none of these assignments, except the fourteenth, merits any discussion.

Benjamin Lingo was the young man to whom it was claimed the liquor had been sold by the respondent. The age of this Benjamin Lingo became material. His mother testified upon the subject, and referred to the date of his birth in connection with the birth of an older brother, Robert. The record of the birth of Robert Lingle was received in evidence over the objection and exception of respondent. The fact that the name was Lingle in the record instead of Lingo seems to have escaped the attention of the court until the charge to the jury. In speaking upon the subject of the age of Benjamin Lingo, the court said:

“Now, gentlemen, in determining what was the age of Mr. Lingo at that time, you are to take all the evidence in the case into consideration. There has been some record evidence given here in regard to the birth of a Robert Lingo. Now, at the time that this was introduced, my attention was not called — at least if it was, I did not so understand it — that the name was not the same, that the name was not Lingo. It seems to be Robert Lingle, and for that reason I think it is my duty to say to you that the evidence is not proper in this case, and it may be stricken out. That is, the evidence given in regard to the birth, page 188 being 2577, and you are not to consider it, for the reason it does not appear to have been Robert Lingo. And there is no evidence here to show it meant any other person except the one it states.”

It appears that this record was by the court fully withdrawn from the consideration of the jury, and that the error in admitting it, in the first instance, was fully cured by the charge.

The remaining assignments of error relate to the charge of the court, and the refusal to charge as requested. We have examined the charge, and it seems to have covered the case fully, and to have fairly presented the questions involved to the jury. The following language is complained of:

“ So I say to you, gentlemen, if you should find at that time that the respondent in this case sold him intoxicating liquors on the 16th day of February, 1909, and at that time Mr. Lingo was not 21 years of age, then the law presumes that he did it with a felonious intent to violate the law. Those facts create a prima facie case against the respondent.”

The use of the word “felonious ” is complained of. In the same connection the court called attention to the language of the section and said:

The fact of selling or giving or furnishing any liquid, in any place where intoxicating liquors are sold or kept for sale, to any minor, shall be prima facie evidence of an intent on the part of the person so selling, giving, or furnishing such liquor to violate the law.”

We think that the jury were not misled by the use of the word complained of, and that it cannot be said that the jury were given to understand that the respondent was charged with a felony. We are unable to see wherein the respondent was prejudiced by the language used. While the court did not give respondent’s requests to charge, it did give the substance thereof in its own language, fully covering the matters of the burden of proof, presumption of innocence, reasonable doubt, and particularly called attention to the language of the statute, as indicated above.

We find no error in the record. The conviction of the respondent is affirmed, and the circuit court is directed to proceed to sentence.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. BURKE.
    1. Criminal Law — Appeal and Error — Saving Questions for Review — Variance—Waiver of Examination.
    Upon a record which fails to show whether respondents were examined or waived examination, pleaded to the information or stood mute, no foundation is laid for the contention that they were not examined as to the crime charged in the information.

      2. Same — Federal Jurisdiction — Exclusiveness—Breaking and
    Entering Post Office.
    The crime of breaking and entering an office used as a post office, not adjoining to or occupied with a dwelling house, with intent to commit the crime of larceny, is punishable under 8 Comp. Laws, § 11547, in ■ the courts of the State of Michigan, since section 5478, TJ. S. Comp. Stat. 1901, provides a punishment therefor without' creating exclusive jurisdiction, of such cases in the Federal courts.
    Error to Hillsdale; Chester, J.
    Submitted April 21, 1910.
    (Docket No. 136.)
    Decided May 7, 1910.
    James E. Burke, Charles Hadley, and William Miley were convicted of breaking and entering an office under 3 Comp. Laws, § 11547, and sentenced to imprisonment for not to exceed 15 years in the State prison at Jackson.
    Affirmed.

      Frank M. Hall, for appellants.

      John F. Bird, Attorney General, and Paul W. Chase, Prosecuting Attorney, for the people.
   Ostrander, J.

Respondents were convicted of the crime of breaking and entering an office not adjoining to or occupied with a dwelling house, with intent to commit the crime of larceny therein. 3 Comp. Laws, § 11547. The complaint charged the breaking and entering of “ the north part, ground floor, of the building known as the Sutton Block, and owned by John R. Sutton, * * * used and occupied as a post office.” The information charges the breaking and entering of the office situate in the north part, apartment, and rooms on the ground floor of the building known as the Sutton Block, * * * owned by John R. Sutton, and said office being rented, leased, used, and occupied by the United States government as a post office and for postoffice purposes.” It is one of the contentions of respondents that there is a varianee between the complaint and the information; that they had no examination upon the charge stated in the information. It does not appear from the printed record whether respondents were examined, or whether they waived examination, whether they pleaded to the information or stood mute. There is therefore no apparent foundation for the contention.

The principal and the meritorious question presented is whether the Federal courts have exclusive jurisdiction to try and punish the respondents. We are referred to section 5478 of the Revised Statutes of the United States (17 U. S. Stat. p. 391, U. S. Comp. Stat. 1901, p. 3896), which provides a punishment for persons forcibly breaking into any post office or any building used in whole or in part as a post office, with intent to commit therein larceny or other depredation. Section 5398 of the same revision and same title (4 U. S. Stat. p. 199, U. S. Comp. Stat. 1901, p. 3699) reads as follows:

“ Nothing in this title [Crimes] shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.”

Our attention has been directed by counsel for respondents to no statute of the United States in which the exclusive jurisdiction of the Federal courts in such cases is asserted. The decision in People v. Fonda, 62 Mich. 401 (29 N. W. 26), which is relied upon, goes expressly upon the ground that jurisdiction of State courts in such eases as the one there considered is expressly excluded by the statutes of the United States. If, therefore, the information charges an offense within 3 Comp. Laws, § 11547, the court had jurisdiction to try and sentence the respondents. The description of the apartment entered as a post office, in conformity with the fact, is of no greater significance than would be the description, law office, if that were according to the fact. If the information had alleged the breaking and entering of an office situated on the first or ground floor of the described building, said office being then and there leased and occupied by the United States as a post office, the offense would have been in all essentials described as it is described in the information.

The information is good, and the conviction is affirmed.

Hooker, Moose, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    PEOPLE v. ALBRIGHT.
    •Criminal Law — Wife Desertion — Constitutional Law —Continuing Offenses.
    Act No. 144, Pub. Acts 1907, making wife desertion coupled with wilful failure to provide maintenance a felony, does not affect an act of desertion which took place before its enactment, although the desertion is followed by continuing neglect to provide maintenance; since the desertion could not be made a criminal act by a statute subsequently enacted without a violation of the constitutional prohibition against ex post facto laws. Const, of 1850, art. 4, § 43.
    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted April 1910.
    (Docket No. 146.)
    Decided May 7, 1910.
    Ferdinand Albright was convicted of deserting and abandoning his wife.
    Reversed, and respondent discharged.

      Walter I. Lillie, for appellant.

      John E. Bird, Attorney General, Charles W. McGill, Assistant Attorney General, and Corie C. Coburn, Prosecuting Attorney, for the people.

      The respondent was placed upon trial in the November term, 1909, of the circuit court, under an information which charged that he had on, to wit, May 30, 1909, at the city of Grand Haven,- deserted and abandoned his wife, one Gertrude Albright, and without providing necessary and proper shelter, food, care, and clothing for the said wife, and that he had continued in such desertion and abandonment from said May 30, 1909, until the present time, contrary to the form of the statute, etc. The prosecuting attorney, in his opening to the jury, stated thatTie would show that the respondent and his wife were married February 7, 1905, while the respondent was under arrest for bastardy on complaint of said Gertrude; that they had never lived together after such marriage, but that he had deserted and abandoned her immediately, and that respondent had not provided his said wife with proper food, care, clothing, and shelter at any time, from the time of such marriage to the time of the trial, and that such desertion and abandonment had continued from said February 7, 1905, to the present time.
    Evidence was offered tending to support the charge in the information. There are two assignments of error which allege that the court erred in ruling upon the introduction of evidence. As neither of the rulings was excepted to, and as the objections were without merit, we shall not consider them.
    At the close of the' evidence, counsel for the respondent moved for a directed verdict of not guilty, for the following reasons:
    (1) That the proof shows that the desertion took place on the 7th day of February, 1905, if at any time, and that he (respondent) has never lived with her from that day until this, and in fact has never had anything to do with her, except a few conversations when he was under arrest.
    (3) That the act in force at the time this desertion and abandonment took place was Act No. 89, Pub. Acts 1903, which contained in its provisions other clauses than Act No. 144, Pub. Acts 190?, to wit, that the wife must be a burden upon the public, and the respondent must leave the State of Michigan.
    (3) That Act No. 39, Pub. Acts 1903, was repealed by Act No. 144, Pub. Acts 190?, and there was no reserving clause whatever.
    The court overruled the motion, and allowed the information to be amended so as to include the date of February ?, 1905, and from thence down to the 20th day of May, 1909, and to the present time, to which ruling respondent’s counsel excepted.
    The respondent then requested the court to charge the jury as follows:

      “ (1) That when a person has been arrested for bastardy, and then marries the girl, and never lives with hep a minute, it is not the desertion and abandonment meant by Act No. 144 of the Session Laws of 190?; for that statute only applies to a husband and wife who actually lived together as husband and wife, for some period of time, and then the husband deserts and abandons the wife.
    “ (2) That if you find from the evidence in this case that the complaining witness, Gertrude Albright, and the respondent, Ferdinand Albright, never lived together after the marriage — not even a minute — was performed, and further find from the evidence in this case that after the marriage was performed, he immediately left her, and has never lived with her as his wife, then I charge you that your verdict will be not guilty.”
    Both of said requests were refused. The court charged the jury that, in order to convict the respondent, it must appear from the evidence beyond a reasonable doubt that he abandoned and deserted his wife on February ?, 1905, and that he continued that abandonment and desertion to the present time, without providing necessary and proper shelter, food, and clothing for her; that the term “abandonment ” has been defined under this statute as being the act of the husband who leaves his consort wilfully, and with an intention of causing perpetual separation; that desertion is used in the same statute, “ any person who deserts and abandons his wife and childrenthat these two words “desert” and “abandon” are not synonymous; they do not mean the same thing; desertion is the act, and abandonment covers the intent; that before the respondent could be convicted the jury must find, beyond a reasonable doubt, that this act of abandonment, at the time, if he did abandon her, was with the intent that it should be perpetual as above defined, and that he intended never to support her,'or live with her again, or furnish her with proper shelter, food, etc. In other words, that he entirely abandoned her as his wife, the same as though he had no wife. The circuit judge concluded his charge in the following words:
    “ Did this respondent on the 7th day of February, 1905, abandon and desert this woman, under the definition I have given you of abandonment and desertion, and did that abandonment and desertion continue from thence down to the present time ? In other words, has it continued from that time up to the present ? Not only this, did he abandon and desert her at that time, but you should find that he did not provide necessary and proper shelter, food, and clothing for his wife. It would be as necessary to show that as much as the abandonment; the two go together. He must not only abandon and desert his family, but he must leave them under such circumstances as the statute states.”
    The respondent was convicted, and the case is here upon exceptions before sentence.
   Stone, J.

(after stating the fads). In our opinion the conviction of the respondent should be set aside, and the respondent discharged. Act No. 144, Pub. Acts 1907, is entitled—

“An act to prevent the desertion and abandonment of wife or children by persons charged by law with the maintenance thereof; to make such abandonment and desertion a felony,” etc.

The elements of the offense defined by section 1 of the act are desertion and abandonment without providing necessary and proper shelter, food, etc. It is unlike the Wisconsin statute, referred to in 1 McClain on Crimina! Law, § 58, cited by the prosecuting attorney, in this: That statute made it a misdemeanor for a husband to abandon his wife, leaving her in a destitute condition, and also made it a misdemeanor if a husband, being of sufficient ability, refused or neglected to provide for her. In the opinion in State v. Witham, 70 Wis. 473 (35 N. W. 934), a case arising under the Wisconsin statute, it is pointed out that the act provides for two cases; that the penalty of the act is incurred by the abandonment, leaving the wife destitute, and is also incurred by a wilful refusal to provide for her; that while in that case the abandonment occurred before the law took effect, the wilful refusal to provide continued to the time of trial. The Michigan statute does not make the refusal, or neglect of the husband to provide necessary shelter, etc., a felony. It makes desertion and abandonment, plus such refusal or neglect to provide, a felony.

In the case at bar the desertion and abandonment occurred in February, 1905. In so far as the statute we are considering is concerned, it was an innocent act; at least it was not a criminal act. It could not be made a criminal act by a statute thereafter enacted. If it could be assumed that the legislature intended to make the act of 1907 apply to conduct which took place in 1905, an assumption which is, of course, purely gratuitous, the act of 1907 would be an ex post facto law. In this view of the case it is unnecessary to decide the other questions raised and discussed.

The conviction is set aside, and respondent discharged.

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


text:
    COOPER v. CARR.
    1. New Trial — Trial — Misconduct ok Juror — Prejudice ok Jury.
    Where, during the progress of the trial and before the submission of the case, a juror has made statements outside the jury room concerning the case or evidence offered therein, indicating a fixed opinion unfavorable to the moving party or ill will towards him, it is ground for a new trial, without a showing that the verdict was actually influenced by such improper conduct.
    3. Same — Laches—Failure to Act Promptly.
    It is incumbent on counsel to move promptly in the matter upon information, and he may not sit silently by and speculate upon the result.
    3. Same.
    An attorney, who, during the trial, obtains affidavits of prejudiced statements made by a juror, presents them to the trial court and takes time to prepare a motion to discharge the jury, which, meanwhile, appears and announces its verdict, moves with sufficient promptitude.
    4. Same — Trial—Mistrial.
    The trial court has power even in a criminal case to arrest the trial, determine the legal qualifications of a juror, and may discharge the jury and impanel a new one, to avoid mistrial.
    5. Same — Appeal and Error — Discretion.
    To warrant interference by an appellate tribunal with the discretion of the trial court in denying a new trial, abuse thereof should be so plain that, upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say that there was no justification or excuse for the ruling made.
    Error to superior court of Grand Rapids; Stuart, J.
    Submitted April 19,. 1910.
    (Docket No. 88.)
    Decided May 7, 1910.
    Case by Lena Cooper against Nora Carr for false imprisonment, malicious prosecution, and slander. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      E. J, Doyle, for appellant.

      Holmes & Holmes (M. A. Nichols, of counsel), for appellee.
   Stone, J.

This is an action on the case for false imprisonment, malicious prosecution, and slander; the declaration consisting of three counts. The trial resulted in a verdict and judgment for the plaintiff for $2,850 damages. The defendant has brought the case here on writ of error.

There are many assignments' of error relating to the rulings of the court in the introduction of evidence, the charge of the court, the refusal to charge as requested, and in denying defendant’s motion for a new trial. We find no reversible error in the case except as hereinafter stated.

After the case had been argued and submitted to the jury, and while the jury were in the jury room considering the case, it came to the attention of the attorney for the defendant that one of the jurors, one Jaspers, was. strongly prejudiced against the defendant, and had, after being sworn as a juror, made statements to that effect on. the first day of the trial, and before any evidence had been introduced on behalf of the defendant. Defendant’s attorney presented to the trial judge the affidavits of three men, John Korten, Nicholas Minnema, and William Baker, and moved that the jury be discharged. The said affidavits were all positive in their statements, and were to the effect that the said juror, during a recess of the court, came into the constable’s room in the basement of the city hall, and in the presence of at least four men stated that he was sitting as a juror in said cause; that only two Polacks on the jury were for the defendant, but that they would have to fix them; that he asked one of the bystanders if he didn’t know the girl (the plaintiff), and stated that he then was ready to give her $2,000, and that the case was freely discussed there, and that the said juror took part in talking about the plaintiff, and her family, and circumstances. One of said affidavits stated that said juror said on that occasion that the plaintiff got $2,000, in the trial had before, and that' he was ready to give her that then.

It appears that while defendant’s attorney was in the office of the trial judge reading said affidavits, and presenting orally such motion, the officer in charge of the jury announced that the jury were ready to report; that defendant’s attorney there repeated to the court that he desired to make a motion to discharge said jury before a verdict was rendered in the case, and immediately retired to an adjoining room to reduce such motion to writing; that during-his absence the verdict was received. The record fails to show that any exception was taken to this action. The defendant, however, presented a motion for a new trial, based in part upon the conduct of said juror, and supported by said affidavits and a further affidavit of Ernest J. Nichols as to the same conversation, in which it was stated that said juror said that he knew the plaintiff, and that she had had hard luck, and that he was then ready to give a judgment for her for $2,000; that there were two Polacks on the jury that he thought would not be in favor of giving the girl (the plaintiff) any judgment, but he would fix them. Said motion stated, among other things, as a reason for setting aside the verdict, that said juror Jaspers on the first day of the trial, and before the evidence of a single witness had been completed, had stated to others outside of the courtroom, during a recess, that he knew the plaintiff and her circumstances, and had an opinion in the case; that said juror was prejudiced in favor of said plaintiff, and was actuated by unworthy motives, and incompetent to sit as a juror in the trial of said cause. Said motion further alleged error in refusing to grant the motion to discharge the jury before they rendered this verdict, when the evidence of the three witnesses — naming them — had been presented in reference to the juror Jaspers.

The counter affidavits are not contained in the printed record, but we have examined them in the original returns. A careful examination of all the affidavits pro and con satisfies us that by a clear preponderance the position of the defendant’s attorney in support of his motions was proven. The trial judge denied the motion for a new trial, and filed reasons therefor, from which we quote:

“While the conduct of the juror John Jaspers, as appears from the affidavits submitted, was highly improper and reprehensible, yet I do not consider that such conduct on his part * * * renders the verdict void, as claimed by counsel for the defendant; nor do I find that the juror Jaspers took any part in seeking to influence the other jurors by personal appeal to them, or that any of the others were knowingly influenced by him; yet for some unaccountable reason the verdict, it seems to the court, is clearly excessive and out of all proportion with the evidence of damages submitted. There was virtually no evidence of false imprisonment, for which the defendant could be held liable, and the evidence as to the slander was confined within such narrow bounds that I cannot see how it could injure the plaintiff to such an extent as the verdict would indicate. * * * A new trial will be granted unless the plaintiff within 15 days shall file a statement agreeing to remit $2,000 of the judgment, and to accept $850 for damages, together with the costs of suit which may be taxed.”

Such remittitur was filed by the plaintiff. The defendant excepted to the refusal to grant the motion, and has assigned error thereon.

We are strongly impressed with the claim of the defendant that, from the facts found by the trial judge upon the motion for a new trial, he should have granted the motion, and that it was not a case for a reduction of damages. He found that the conduct of the juror was highly improper and reprehensible. It was not necessary to find that the other jurors were knowingly influenced by Jaspers, in order to make his conduct illegal. May not the so-called “unaccountable reason’’for the excessive verdict which the trial judge found, be reasonably explained by tbe probable conduct of tbe juror who had shown himself so prejudiced and biased? We think so. It is a well-known rule that where, during the progress of a trial, and before the submission of the case, a juror has made statements outside the jury room concerning the case, or evidence offered therein, indicating a fixed opinion unfavorable to the moving party, or ill will towards him, it is ground for a new trial. 29 Cyc. p. 799; Tomlinson v. Town of Derby, 41 Conn. 268; Wightman v. County of Butler, 83 Iowa, 691 (49 N. W. 1041). Nor need it be shown that the verdict was actually influenced by such improper conduct. Where misconduct on the part of a juror which might have been prejudicial has been shown, it is held in many cases that the presumption must be rebutted, by the successful party, to prevent the setting aside of the verdict, or the granting of a new trial; and, whenever the misconduct of the jury can be reasonably supposed to have resulted to the injury of a party, a new trial should be granted. 12 Enc. PI. & Prac. p. 553; Collier v. State, 20 Ark. 36; Luttrell v. Railroad Co., 18 B. Mon. (Ky.) 291, wherein it is said that a safe rule is to regard the misconduct of the jury as sufficient ground for a new trial, where the party complaining did not connive at it, nor in any manner was instrumental in producing it. State v. Hartmann, 46 Wis. 248 (50 N. W. 193).

In Jewsbury v. Sperry, 85 Ill. 56, it is held that, if jurors pending the trial discuss tbe merits of tbe case publicly in the presence of others, stating there is no merit in the defense, and that they will find for the plaintiff without regard to defendant’s argument or instruction of the court, their conduct will be so improper as to call for a new trial. Albin Co. v. Demorest Manfg. Co., 22 Ky. Law Rep. 245 (56 S. W. 982). In this case the affidavits tended to show that some of the jurors indulged in conversation with outsiders touching the matter in controversy, which, if true, was a breach of their duties as jurymen. Statements were made tending to show that a juror said, in substance, that some of them were ready to go over whenever a sufficient number could be obtained to find a verdict. This was such misconduct as entitled the defendant to a new trial. In Blalock v. Phillips, 38 Ga. 216, it was held that the conduct of certain jurors who, while they were charged with a case, conversed with a person not on the jury in the presence of a number of others about the case, and used expressions favorable to the right of the plaintiff to recover, assigning as a reason that defendant, sworn as a witness, had contradicted himself, when in fact he had not, it was held highly reprehensible, and that a new trial should have been granted by the court below on that account. The opinion concludes in these words :

“For the gross violation of this rule in this case the court should not only set aside the verdict, but he should have inflicted exemplary punishment upon the delinquent jurors.”

In Nesmith v. Insurance Co., 8 Abb. Prac. (N. Y.), 141, it was said that, although a verdict will not generally be set aside because the jury had been approached, if it clearly appear that no injustice had been done and the interference did not affect the result, yet if it appears that they have been approached in such a manner as might influence the verdict, it should be set aside without reference to the source and motive of the interference. During the trial of an action turning upon much conflicting testimony, the jury listened to the statements of a third party attacking the credibility of defendant’s witnesses, and it was held that the verdict for the plaintiff must be set aside.

Pettibone v. Phelps, 13 Conn. 445 (35 Am. Dec. 88). If the misconduct of a juror indicates any improper bias upon his mind, and the court can see that it either had, or might have had, an effect unfavorable to the party moving for a new trial, it is a sufficient ground for setting aside the verdict. State v. Cucuel, 31 N. J. Law, 249. In this case it is held that, while a verdict will not be set aside on account of the misconduct or irregularity of a juror, unless it be such that it might affect the others materially, and disqualify them from the proper exercise of their functions, yet if any ground whatever appears for the belief, and even suspicion, that such condition of things existed, a new trial should be freely granted. McDaniels v. McDaniels, 40 Vt. 363. The friends of the plaintiff in this case had approached the jury, and had expressed their opinions in regard to the merits of the suit, but this without the knowledge of the plaintiff. The ' court said:

“ The plaintiff, as he was unaware of these transactions, is not liable to punishment, but it does not follow from this that he can hold a verdict which is the result of a trial corrupted, though without his fault, by a shameful disregard of the familiar rules which are necessary to a decent administration of the law. The court set the verdict aside, not as a punishment to any one, but in justice to themselves, as well as to the defendant, that the trial may be conducted fairly so that the verdict, when finally rendered, may be entitled to the respect of both parties and the confidence of the court as the result of a trial substantially according to law, and upon the evidence in court. It is true that a verdict should not be set aside for every trifling error of law by the court, or fqr every trifling misconduct of a juror which occurs without the fault of the prevailing party, but it should be whenever the error or misconduct renders it reasonably doubtful whether the verdict has been legitimately procured.”

And the action of the court below granting a new trial was sustained.

It is incumbent on counsel to move promptly in the matter, upon information, and he cannot sit silently by and speculate upon the result. State v. Floyd, 61 Minn. 467 (63 N. W. 1096); 12 Enc. Pl. & Prac. p. 553; Sleight v. Henning, 12 Mich. 371. We think that defendant’s attorney was not guilty of laches or of a waiver in this case, and that his action was timely. Under the practice which obtained before the present - statute, the writ of mandamus was resorted to in such cases. Churchill v. Alpena Circuit Judge, 56 Mich. 536 (23 N. W. 211). See opinion of Justice Campbell in this case upon the merits of the question. The trial court has the power, even in a criminal case, to arrest the trial, determine the legal qualifications of a juror, and may discharge the jury and impanel a. new one, and thus avoid a mistrial. People v. Parker, 145 Mich. 488 (108 N. W. 999); In re Ascher, 130 Mich. 540 (90 N. W. 418, 57 L. R. A. 806). We are aware of the rule that the granting of a new trial ordinarily rests in the discretion of the trial court, which, if not abused, cannot be interfered with by this court. To warrant such interference, the abuse ought to be so plain that upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say that there was no justification or excuse for the ruling made. Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 360 (42 N. W. 968); Scripps v. Reilly, 35 Mich. 392 (24 Am. Rep. 575). In that case Justice Graves said:

“This court will not revise such matters unless there is plain evidence of action, amounting to what is called an ‘abuse of discretion,’ and calculated to injuriously affect the legal rights of a party; and, where such is the case, whether the result of accident or inadvertence or misconception, it will take cognizance. The error in this case is one subject to review, and is sufficient to require a reversal. ”

We are constrained to say that in our opinion the defendant did not have the benefit of such a jury trial as she was entitled to have under the law, that the judgment is not the result of a verdict of an impartial jury, and that defendant was entitled, as a matter of right, to have the same set aside, and that the trial judge, on the facts found by him upon the motion for a new trial, erred in denying the motion, and that such result was not justified, under the circumstances of the case.

The judgment will be reversed, and a new trial granted.

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


author: Brooke, J.

text:
    HORNING v. SAGINAW CIRCUIT JUDGE.
    1. Equity — Jurisdiction — Judgment — Modifying Stipulated
    Decree — Compromise and Settlement.
    After the entry of a decree by stipulation of the parties, in a suit to declare a trust in lands purchased by defendant, under the terms of which decree the complainant should pay a definite amount within sixty days or forfeit all interest in the property, the court is unauthorized in modifying the decree upon petition of the complainant so as to give him an additional period of time in which to obtain the money; no mistake or fraud being shown.
    2. Mandamus — Appeal and Error — Final Order — Equity.
    The writ of mandamus will not issue to vacate the order modifying the final decree, since it is reviewable on appeal.
    Mandamus by Washburn Horning to compel William R. Kendrick, circuit judge of Saginaw county, to vacate an order amending a decree.
    Submitted May 3, 1910.
    (Calendar No. 23,928.)
    Writ denied May 9, 1910.

      Julius B. Kirby, for relator.

      Thomas G. Baillie, for respondent.
   Brooke, J.

Relator was defendant in a chancery proceeding, in which he was charged with having purchased certain lands and securities as trustee for the complainant therein. He filed an answer to the bill of complaint, but before proofs were taken the parties to the cause agreed upon a settlement of the matters in dispute, and on January 3, 1910, a consent decree was entered, by the terms of which complainant was to pay the relator the sum of $6,000 on or before February 15, 1910, with interest from February 1, 1910. Upon the payment of said sum, relator was to transfer and convey the property in dispute to the complainant. In default of the payment of said sum on or before said date, the property in dispute was to become the property of relator, free from any claim of complainant, and the bill of complaint be dismissed. On February 15, 1910, complainant filed a petition for an extension of 60 days in which to pay the $6,000. A hearing was had on said petition on February 21, 1910, and a supplemental decree was made on February 24, 1910, extending the time of payment to March 31, 1910. This was done over the protest of relator. No fraud or mistake was shown upon the hearing, but the amendment to the decree was made, as recited therein, for the reason that the complainant had acted in good faith, but had been disappointed in its efforts to raise the money, and that if the additional time were not granted complainant would be greatly damaged, and its property largely sacrificed, while the defendant (relator) would not be seriously injured by the extension. Relator asks for a writ of mandamus to compel the vacation of the amended decree.

It is elementary that a decree by consent cannot, in the absence of fraud or mistake, be set aside by rehearing, or on appeal; nor can it be modified without the consent of the parties, Russell v. White, 63 Mich. 409 (29 N. W. 865); Hodges v. McDuff, 76 Mich. 303 (43 N. W. 428); 18 Enc. Pl. & Prac. p. 5, and cases cited. This proposition is not denied by the respondent; but it is urged that, the amended decree, which provides merely for an extension of time in which the money is to be paid, is not an alteration of the decree.

We are unable to agree with this contention. The record shows that a part of the property in dispute consisted of a gravel pit, which both parties desired to operate. Relator is prevented by injunction from operating during the pendency of the suit. It is apparent to us that the element of time was of the very essence of the agreement, which ripened into a decree. If the court below could extend the time once for a month, it could again extend it for a further period, and thus render the decree less valuable, or -even useless, to the party not consenting to the change. A reduction of the sum to be paid might easily be less injurious to the rights of relator than an extension of the time for payment.

The question of the propriety of the remedy (mandamus) sought by the relator, while not raised by the respondent, forces itself upon our attention. It seems clear that the order extending the time of payment, which by its terms stands as a supplemental decree, is a final order, and that review thereof can be had only by appeal. Having indicated our views upon the merits, however, it is probable that a proper order will be entered by the learned circuit judge, upon the application of relator, without necessitating the delay incident to an appeal.

The writ will be denied, but without costs.

Ostrander, Hooker, McAlvay, and Stone, JJ., concurred.


author:
Blair, J.
      McAlvay, J.

text:
    JACOBS v. E. BEMENT’S SONS.
    1. Corporations — Dissolution — Statutory Construction — Words and Phrases.
    Applying the rule that when, after an enumeration, a statute employs some general term to embrace other oases, the other cases must be understood to be cases of the same general character with those named, a corporation dissolved by voluntary proceedings under chapter 300, 3 Comp. Laws, does not survive for three years after a decree of dissolution within the provisions of 3 Comp. Laws, § 8534, which apply to “all corporations whose charters shall expire by their own limitation or shall be annulled by forfeiture or otherwise.”

      3. Same — Receivers.
    A receiver appointed in proceedings for the voluntary dissolution of a corporation becomes vested with all the estate, real and personal, of such corporation. Act No. 96, Pub. Acts 1905.
    3. Same — Creditors.
    A creditor cannot institute an action against a corporation after a receiver is appointed and it has been dissolved and its assets partly distributed in voluntary dissolution proceedings.
    4. Same — Debtor and Creditor — Receivers.
    Full authority is given to such receiver to reach all assets of the dissolved corporation which could be reached by any creditor.
    MoAlvay and Hooker, JJ., dissenting.
    Error to Ingham; Wiest, J.
    Submitted October 14, . 1908.
    (Docket No. 57.)
    Reargued October 19, 1909.
    Decided June 6, 1910.
    Assumpsit by Abraham Jacobs against E. Bement’s Sons on certain promissory notes. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.
    Plaintiff brought assumpsit against defendant to recover on four notes, amounting, with interest, to $2,666.58, executed by defendant and indorsed to plaintiff. Defendant was a Michigan corporation, and, in defense, alleged dissolution proceedings under 3 Comp. Laws, chap. 300, and a decree therein May 6, 1905, dissolving the corporation and appointing a permanent receiver. The notes were presented during the course of receivership proceedings and the claim allowed, and plaintiff subsequently participated in dividends paid to the amount of 20 per cent, of the claim. The validity of the notes was not disputed. The trial court held that, by reason of the dissolution proceedings, the suit could not be maintained, and rendered judgment for defendant.

      Bernard B. Selling, for appellant.

      Edward Cahill, for appellee.
   Blair, J.

I am of the opinion that the circuit judge reached a correct conclusion in this case. The maintenance of the plaintiff’s suit depends upon whether or not the provisions of section 8534, 3 Comp. Laws, apply to proceedings for the voluntary dissolution of a corporation under chapter 300 thereof. I think that section does not apply. It is a familiar rule of construction that—

“When, after an enumeration, the statute employs some general term to embrace other cases, the other- cases must be understood to be cases of the same general character, sort, or kind with those named.” Brooks v. Cook, 44 Mich. 617 (7 N. W. 216, 38 Am. Rep. 282).

See, also, Macumber v. Booming Co., 52 Mich. 195 (17 N. W. 806); Roberts v. City of Detroit, 102 Mich. 64 (60 N. W. 450, 27 L. R. A. 572); People v. Shurly, 124 Mich. 645 (83 N. W. 595). In accordance with this rule of construction, the words “or otherwise” in the provision of section 8534 that “all corporations whose charters shall expire by their own limitation, or shall be annulled by forfeiture or otherwise,” etc., should be referred to termination of the corporate existence by circumstances or acts not dependent upon the voluntary action of the corporation and not to voluntary proceedings in behalf of the corporation. Heap v. Manufacturing Co., 97 Mich. 147 (56 N. W. 349). In that case it was held that a forfeiture of the charter of a manufacturing corporation could only be adjudged at the suit of the State through its attorney general. The provisions of section 8534 are reasonable and beneficial as applied to a corporation whose charter has expired or whose charter has been adjudged forfeited at the suit of the attorney general. The provisions of the section, if sought to be applied to proceedings under chapter 300, would be in conflict with the plain provisions of the chapter and introduce great eonfusion into such proceedings. Section 8 of the chapter, being section 10859, 3 Conap. Laws, provides for the entry of a decree of dissolution “and such corporation shall thereupon be dissolved and shall cease.” In the language of Mr. Justice Campbell :

“All the subsequent proceedings go upon the basis that there is no longer any corporation, and they are intended to secure the collection and distribution of the assets in complete analogy to proceedings concerning the estates of deceased persons and concerning insolvent estates. The receivers are put by two different sections on the footing of trustees of insolvents, and it is the insolvent law that gives the rule concerning references which are to be had under ‘the same power’ and with the like effect.” Cady v. Manufacturing Co., 48 Mich. 133 (11 N. W. 839).

Furthermore, the provisions of chapter 300 relative to the voluntary dissolution of corporations were enacted later in point of time than the three-year clause, which “ was adopted when all corporations were created by special charter and when no power had been reserved to repeal any charter, except for cause.” Bewick v. Alpena Harbor Co., 39 Mich. 700. Sections 10886-10889, appear to me to support my conclusion, since these provisions are unnecessary so far as corporate litigation is concerned, if section 8534 applies. That section provides:

“All corporations whose charters shall expire by their own limitation, or shall be annulled by forfeiture or otherwise, shall nevertheless continue to be bodies corporate, for the term of three years after the time when they would have been so dissolved, for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property, and to divide their capital stock; but not for the purpose of continuing the business for which such corporations have been or may be established.”

The section contemplates the existence of the company for the purpose of gradually winding up its affairs with all the powers it had prior to the annulment of its charter, except those relating to the continuance of the business. Such powers are manifestly repugnant to the scheme of chapter 300, which imperatively provides (section 10859):

“Upon the coming in of the report of the master, if it shall appear to the court that such corporation is insolvent, or that for any reason a dissolution thereof will be beneficial to the stockholders, and not injurious to the public interest, a decree shall be entered, dissolving such corporation, and appointing one or more receivers of its estate and effects; and such corporation shall thereupon be dissolved and shall cease.”

By Act No. 96, Pub. Acts 1905, section 10862 was so amended as to confer upon the receivers power to continue the business of the corporation “ for a period not exceeding sixteen months and to sell the property and assets of such corporation at private sale in the usual course of its business,” etc. The corporation cannot cease and be in existence at the same time. It cannot have the right to prosecute and defend suits itself when the only provisions in this regard in chapter 300 require that pending suits must be conducted by the receivers, although they may use their own names or the name of the corporation, and also that new suits must be conducted by the receiver in his own name or the name of the corporation. In either case it is the receiver that gives vitality to the prosecution or defense, whether he uses his own or the corporate name. As Mr. Justice Campbell remarked, the corporation in relation to the receiver occupies the position of a dead person to his executor. The shadow of the name alone remains. Section 10889 is not in conflict with section 10859, and should be construed in harmony with it. The fact that the court in which a suit is pending against the corporation may make an order for its continuance until final judgment affords no justification for wiping out the provision that after the appointment of a receiver the corporation “ shall cease.” Section 10865 indicates, as do all of the other essential sections, that the corporation does not have control of its defense. It provides that, after the filing of the petition for a dissolution,—

“All judgments confessed by such corporation after that time, shall be absolutely void as against the receivers who may be appointed on such petition, and as against the creditors of such corporation.”

As the receivers become vested with “all the estate, real and personal, of such corporation,” how is the corporation to defend itself ? Manifestly, I think, through the receiver, who has its assets, and therefore the means of making a defense, and he will conduct the defense just as he may prosecute the suit of the corporation under section 10886 in the name of the corporation. Again, the appellant is not claiming the right to prosecute to final judgment a suit pending, against the receiver, at the time of its dissolution, for which provision is made by section 10889, but to institute an entirely new proceeding against the corporation after the receiver has been appointed, and he has presented his claim against the estate in his hands. And, if he may do this, he and all the other creditors may wait until the estate has been settled and the receiver discharged, provided the three years have not elapsed. No one, I think, would have the hardihood to contend that the corporation could continue after the appointment of the receiver “gradually to settle and close their concerns, to dispose of and convey their property, and to divide their capital stock.”

I am also of the opinion that the receiver has full power to reach all assets of the dissolved corporation which could be reached by any creditor, and that such assets ought to be disclosed to such receiver by any creditor who has knowledge of them, for the benefit of all the creditors. 3 Comp. Laws, § 10866; Osgood v. Laytin, 48 Barb. (N. Y.) 463; 22 Enc. Pl. & Prac. 1286; Attorney General v. Insurance Co., 77 N. Y. 272; American Steel & Wire Co. v. Eddy, 130 Mich. 266 (89 N. W. 952).

The judgment is affirmed, with costs to defendant.

Ostrander, Moore, Brooke, and Stone, JJ., con. curred with Blair, J.

McAlvay, J.

(dissenting). Plaintiff brought assumpsit against defendant to recover a judgment on four certain promissory notes, amounting, without interest, to $2,666.58, executed by defendant to certain parties and duly indorsed to plaintiff. Defendant was a Michigan corporation, and the defense .interposed was that, under and by virtue of the provisions of chapter 300 of the Compiled Laws of 1897, the defendant corporation by its directors took proceedings to be dissolved, and on May 6, 1905, a decree was entered by the circuit court for Ingham county, in chancery, dissolving the corporation, and appointing the Detroit Trust Company permanent receiver. These notes were presented during the course of these proceedings and the claim allowed, and plaintiff subsequently participated in dividends paid, to the amount of 20 per cent, of the claim. This suit was begun after said claim was filed and before any dividends were paid. The validity of the notes is not in dispute. The court held that by reason of the proceedings had under chapter 300, 3 Comp. Laws, the suit could not be maintained and rendered judgment in favor of defendant. Plaintiff brings error.

The errors assigned are upon the holdings of the court in deciding the case, as expressed in the opinion, which is made a part of the record, and which reads as follows:

“The facts in this case are not in dispute. The defendant was a domestic manufacturing corporation, and on May 6,1905, this court in a proceeding under chapter 300, 3 Comp. Laws, entered a decree dissolving the corporation and appointed a receiver under the statute to wind up its affairs. The plaintiff at the time the decree was made held the promissory notes set up in plaintiff’s declaration, and there was due upon such promissory notes from the said E. Bement’s Sons to said plaintiff the amount of such notes, with interest thereon. The plaintiff as such creditor presented his claim to the receiver, which claim was allowed at the amount of said notes, with interest thereon, and he has participated in the declaration of dividends paid creditors, receiving $266.66 on October 24, 1907, and $266.66 on January 8, 1908. August 13, 1907, plaintiff commenced this suit against E. Bement’s Sons as though it had not been dissolved, and now asks judgment against it for the amount due him. The suit was commenced by-declaration, and service was made on Arthur O. Bement, president of the corporation. Can this suit be maintained ? It is claimed by plaintiff that section 8534, 3 Comp. Laws, gives him the right to bring this suit. In this I am of the ’ opinion he is mistaken. If this statute gives him the right to sue the corporation within three years after the court’s decree dissolving it, then the rest of the same section of the statute applies, and the corporation can bring suits, and, for the purpose of enabling it to gradually settle and close its concerns and dispose of and convey its property, the corporation itself continues after the decree dissolving it and the appointment of a receiver. If the officers of the corporation after the appointment of the permanent receiver upon the order of dissolution had attempted to do any of the things mentioned in section 8534, they would have been made to feel the heavy hand of the court, and have been punished for interference with the power of the court under chapter 300. The decree dissolving the corporation ended its existence and never since that decree have its former officers had power to act for or in any way manage the estate left by such defunct corporation. A reading of chapter 300 so clearly indicates that no such suit as this can be maintained that no other authority for refusing judgment need be cited. Counsel for defendant, however, does cite other authority, and the case of Adams Cotton Mills Co. v. Dimmick, 96 Ala. 238 (11 South. 428, 17 L. R. A. 375), was so near in principle like this that the reasoning of the court in that case might well be adopted as the opinion in this case. Chapter 300, 3 Comp. Laws, being the law of Michigan when plaintiff commenced his dealings with the corporation, he cannot now be heard to say that the provisions of this law impair the obligations of the contracts of the corporation. Contracts are usually made having in mind existing law, and, as it must be understood that the provisions of law may be invoked by either party, such provisions, when invoked, do not fall within the prohibition of the Constitution against impairing the obligation of contracts. Section 8534, 3 Comp. Laws, does not permit this suit to be brought. Chapter 300, 3 Comp. Laws, to be effective, prohibits such a suit as this. Judgment for defendant.”

The question involved in this case is whether suit may be maintained against a corporation whose directors have invoked the provisions of chapter 300, 3 Comp. Laws, after a decree dissolving the corporation and the appointment of a receiver. Plaintiff insists that this suit may be maintained by virtue of section 8534, 3 Comp. Laws, which provides:

“All corporations whose charters shall expire by limitation, or shall be annulled by forfeiture or otherwise, shall nevertheless continue to be bodies corporate, for the term of three years after the time when they would have been so dissolved, for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property, and to divide their capital stock; but not for the purpose of continuing the business for which such corporations have been or may be established.”

The entire section has been quoted for the reason that the argument has been presented that, if applicable at all to such cases, the entire section is in force. The section quoted is one of the general provisions relative to corporations, and will be held to control in the case at bar unless the provisions of chapter 300, supra, ave so repugnant to its application that we must hold that it is repealed by implication as far as corporations which have been dissolved- by virtue of such chapter are concerned. The provisions of this section relative to the time within which suits by or against corporations whose charters have expired or been annulled by forfeiture or otherwise must be commenced, have been included in our statutes since 1838. A history of it is given at length in Bewick v. Alpena Harbor Co., 39 Mich. 706-708; and, although the question now before the court was not involved, the decision in that case, and in other cases, in which this three-year term has been discussed cannot be construed as indicating that it would not apply to voluntary.dissolutions. See Bewick v. Alpena Harbor Co., 39 Mich. 700; Empire Manfg. Co. v. Stuart, 46 Mich. 484 (9 N. W. 527); Montgomery v. Merrill, 18 Mich. 338. In chapter 300, being the voluntary dissolution act, special provision is made that suits pending by or against such corporations shall not be abated, and for bringing new suits after dissolution in the name either of the corporation or the receiver (section 10887). Suits so brought, instead of being in contempt of the authority of the court where the dissolution had been ordered, would have been acts within the provisions of this law. Section 10889 provides that suits pending against such corporations at the time of dissolution shall continue to final judgment or decree. Construing section 8534, 3 Comp. Laws, with these provisions of chapter 300, it appears the legislative intent was not to make a corporation voluntarily dissolved an exception to the provisions of section 8534, but indicates by the provisions of sections 10887 and 10889 that the entire section should apply to such corporations. Such construction can imply no interference with the court having jurisdiction of the dissolution proceedings. It is within the fair construction of the statute and gives effect to all of the words of the statute, “all corporations whose charters expire by their own limitation, or shall be annulled by forfeiture or otherwise,” and preserves to litigants their rights which in the cases cited it is said was the presumed legislative intent to preserve. The fact that a claim for the same indebtedness was filed and allowed in the dissolution proceedings is no bar to plaintiff’s right to maintain this suit. It is certain that if such voluntary dissolution operates to wipe out all claims of creditors not satisfied by distribution, whether participating in the distribution of assets or not, chapter 300 is both in fact and in law a State insolvency law. This has been construed by this court not to be the character of this chapter. Town v. Bank of River Raisin, 2 Doug. (Mich.) 556-557. The court under this voluntary dissolution statute determines nothing as to creditors except to distribute assets on hand pro rata among them. Such a dissolution is not an adversary proceeding and may be taken by a solvent as well as an insolvent corporation. A creditor need not participate in the proceedings. If they are begun honestly and in good faith, he will be given his pro rata in any event. Such a corporation may not, under chapter 300, commit suicide, and in that manner avoid paying liabilities, or deprive a creditor from his day in court, any more than an individual may do so. A private corporation cannot voluntarily dissolve so as to discharge itself from existing liabilities. Portland Dry Dock & Insurance Co. v. Trustees of Portland, 12 B. Mon. (Ky.) 79. And, in construing a statute similar to section 8534, the supreme court of West Virginia’s views were those insisted upon by plaintiff in the case at bar. Lumber Co. v. Ward, 30 W. Va. 43 (3 S. E. 227).

It is urged repeatedly that, after such dissolution, a corporation is dead, and all rights to sue are therefore cut off, and creditors cannot recover judgment against a corporation, although debts are not paid in full. Such construction can be founded upon nothing except the theory that chapter 300 is an insolvency law. No court has ever so held. To do so would open the door to the grossest fraud upon creditors, and would be contrary to abundant authority which holds that all State insolvency laws are suspended while a Federal bankruptcy law is in force. Sturges v. Crowninshield, 4 Wheat. (U. S.) 122; Boese v. King, 108 U. S. 379 (2 Sup. Ct. 765). It is not contended that chapter 300 is without any effect, but invalid only in so far as it operates to discharge a corporation for future liability to creditors. This was held in the case of Boese v. King, supra, as to creditors who came in under an assignment and participated in a distribution of assets. The construction contended for by defendant would apply to all the creditors in any ease where the assets of a corporation were insufficient to pay creditors in full. It cannot be that such a construction can be founded either upon sound reason or authority. The following authorities have followed the Federal decisions, and have held that insolvency laws were suspended and not in operation, although no proceedings in bankruptcy were instituted: Moody v. Development Co., 102 Me. 365 (66 Atl. 967), and oases cited; Parmenter Manfg. Co. v. Hamilton, 172 Mass. 178 (51 N. E. 529, 70 Am. St. Rep. 258); Potts v. Smith Manfg. Co., 25 Pa. Super. Ct. 206; Griswold v. Pratt, 9 Metc. (Mass.) 16; Ketcham v. McNamara, 72 Conn. 709 (46 Atl. 146, 50 L. R. A. 641); Harbaugh v. Costello, 184 Ill. 110 (56 N. E. 363, 75 Am. St. Rep. 147); Foley-Bean Lumber Co. v. Sawyer, 76 Minn. 118 (78 N. W. 1038); Lyman v. Bond, 130 Mass. 291.

Upon another ground in this case it would seem that plaintiff is entitled to be permitted to pursue his remedy within the time limited by section 8534, and that is that plaintiff as a judgment creditor may reach assets which a statutory receiver appointed under chapter 300 is not able to reach; i. e., to recover from individual stockholders of defendant corporation assets distributed as dividends while the capital stock was impaired. The powers given to receivers appointed under chapter 300 and their duties and obligations are the same as are given and imposed by law on trustees of insolvent debtors. If the insolvent corporation in this case could not question the matter of unlawful dividends paid its stockholders, by what principle of law can its voluntary assignee or trustee do so? This court has held that he could not attack a chattel mortgage transfer of his assignor; that he did not represent the creditors in such a manner as to entitle him to do so; that creditors could raise the question only in proceedings brought to enforce their claims ( Wakeman v. Barrows, 41 Mich. 363 [2 N. W. 50]); and that none but a judgment creditor can attack a transfer on the ground that it is fraudulent as to creditors (Millar v. Babcock, 29 Mich. 526). It is held that claims for dividends unlawfully declared belong to creditors, and not to the receiver. Butterworth v. O’Brien, 39 Barb. (N. Y.) 192; Farnsworth v. Wood, 91 N. Y. 308.

Counsel for defendant urges that a careful examination of these New York cases shows that they are not applicable to the case at bar. We read them as directly in point. On principle this contention must be sound. The relations of this voluntary receiver to the stockholders as well as to the creditors are such that to hold he could sue the stockholders for the benefit of the creditors would be allowing him to assume a position not in accord with such relations. On behalf of defendant, it is urged that the case of American Steel & Wire Co. v. Eddy, 130 Mich. 266 (89 N. W. 952), appears to be conclusive of this case. In that case a judgment creditor sought to recover, under section 7057, 2 Comp. Laws, against a preferred stockholder, dividends unlawfully declared. This court determined that a preferred stockholder was not exempt from the provisions of the statute, and was liable to the creditor. Careful attention is called to the opinion in the case, in which Chief Justice Hooker, speaking for the court, said:

“This statute provides a new procedure, permitting one who has exhausted his remedy against the corporation (if not others) to sue the stockholder in an action at law. It is contended that this cannot have been contemplated, and that the collection should have been made by an assignee for the benefit of all creditors. We have no doubt that a court of equity, under its general powers, might take custody of all assets for the purpose of distribution, and cut off the personal remedy of the creditor, under this statute, as in other cases; but we have not such a case. We are not advised that any court has taken control of the assets of this corporation, or is in any way attempting their collection and distribution.”

The question in the case at bar of the powers, duties, and rights of a voluntary receiver under chapter 300 was in no way before the court or considered by it. The general powers of a court of equity to authorize a general receiver to get possession of all of the assets of a corporation for the benefit of all creditors was recognized, and nothing more. The case cited is therefore not helpful in the case at bar. In this case the ample powers exercised by general receivers in chancery must be distinguished from the limited powers granted to receivers, so called, under chapter 300, in proceedings voluntary and not adversary, and which must be strictly construed. The powers granted to receivers under chapter 300 are declared by that act to be the same as those granted to receivers of insolvent debtors. This court has never held that receivers of insolvents were clothed with all the powers of general chancery receivers, and has never receded from the position declared in Wakeman v. Barrows and Millar v. Babcock, supra. The powers of such receivers being limited by statute, sections 10863 and 10887 are only available to such receivers within such limited power, and unless we reverse previous decisions of this court, which have never been questioned, we cannot say that the assets sought to be reached by plaintiff can be reached by the receiver in this case. This is the practical construction which to the present time has been given to this law by the receiver and its counsel.

These proceedings under chapter 300 were instituted for the purpose of dissolving a solvent corporation, when, in fact, it was insolvent, as this court found in the case of McIntyre v. E. Bement’s Sons, 146 Mich. 74 (109 N. W. 45). This is of importance, as showing that in fact these proceedings were undertaken to wind up and distribute the assets of an insolvent. This law authorizing the appointment of a receiver to collect, receive, and distribute the assets of an insolvent corporation is an insolvency law, although it does not provide for the discharge of the debtor. Moody v. Development Co., supra, and cases cited. If the construction contended for is given to this statute, it is contrary to the decision of this court in Town v. Bank of River Raisin, supra. If section 8534 does not apply to corporations which have instituted proceedings under chapter 300, and plaintiff is prevented from beginning suit and obtaining judgment against defendant upon a valid and subsisting obligation by the only way possible to begin such a suit, he is not only deprived of his right of action, but such law operates to discharge the debt against the corporation, and is an insolvency law. There was in force before these proceedings were taken and ever since the United States bankruptcy act (Act July 1, 1898, chap. 541, 30 U. S. Stat. p. 544 [U. S. Comp. Stat. 1901, p. 3418]), and chapter 300 in so far as it operated as, and was, an insolvency law, was suspended, and could not operate to discharge the debt due plaintiff, and prevent him from taking a judgment thereon, and was to that extent null and void. There is abundant authority that the question may be raised and determined in this case. Moody v. Development Co., 102 Me. 381, et seq. (66 Atl. 967).

Taking this view of the law applicable to this case, it follows that the judgment of the circuit court should be reversed, and, as there is no disputed question of fact presented, no new trial should be granted. A judgment should therefore be entered in this court in favor of plaintiff for the amount of the notes sued upon with interest to date, deducting payments as of the date received; and also costs of both courts.

The term of Mr. Justice Grant having expired after this case was reargued, by consent of counsel Mr. Justice Stone, his successor, took part in its consideration and determination. Chief Justice Montgomery did not sit.

Hooker, J., concurred with McAlvay, J.


author: Moore, J.

text:
    CARMELL v. PARR.
    Adverse Possession — Taxation—Tax Deeds — Statutes.
    Possession of real property of an open and hostile character for more than fifty years, under tax deeds which are obtained without the breach of any obligation to the owners of the property, by strangers to the title and their grantees, bars an action of ejectment. 1 Comp. Laws, § 3896; 3 Comp. Laws, § 9714; Act No. 86, Laws of 1853; Act No. 32, Laws of 1858.

      Error to Kent; Perkins, J.
    Submitted February 16, 1910.
    (Docket No. 49.)
    Decided June 6, 1910.
    Ejectment by Gideon Carmell and another against Silas L. Parr and another. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Affirmed.

      Drew & Campau (Colin P. Campbell, Thomas P. Bradfield, and Joseph Barton, of counsel), for appellants.

      Butterfield & Keeney (H. E. Winsor, of counsel), for appellees.
   Moore, J.

This is an action of ejectment. The plaintiffs bring the case here by writ of error.

Prior to the 14th day of May, 1835, and on that day, Louis Campau was the owner of lot 5, section 4, of the original plat of the village of Grand Rapids, and on that day Louis Campau and his wife conveyed all of lot 5, except the north 65 feet thereof, by quitclaim deed, the provisions of which deed are as follows:

“This indenture made this fourteenth day of May in the year of our Lord one thousand eight hundred thirty-five, between Louis Campau and Sophia, his wife, of Kent, Michigan, of the first part, and Antoine Carmell and Tesez, his wife, during their life, and their heirs after their decease of the place aforesaid of the second part, witnesseth.”

The granting clause conveys to “said parties of the second part and to their heirs.” The habendum reads:

“To have and to hold the said premises aforesaid to the said parties of the second part, their heirs and assigns, forever.”

The plaintiffs in this case represent the heirs of Antoine and Tesez Carmell; Gideon Carmell holding the interest of all of his brothers and sisters, except that of his sister Theresa, and Lavina Loosemore, representing a portion of Theresa’s interest, being one of her descendants. The evidence shows a conveyance subsequent to the one just described by Antoine Carmell to Alexis Bailey. The date of this conveyance was May 22, 183?, and it conveyed the premises in question. It was disputed as to whether the wife joined in this conveyance or not, and the conveyance not being in the possession of either party, and the record of it having been destroyed, the Scranton abstract, which is a legal record in Kent county, was given in evidence. This abstract showed the name of Antoine Carmell only in the grantor’s column; but there was an erasure showing on the page after the word Carmell, which defendants’ counsel claimed was where the symbol wife had been, and that this symbol appeared in the original abstract, and that the wife, Tesez, joined in the deed. Plaintiffs claim that the wife did not sign this conveyance, and stand on the Scranton abstract as it appears. Defendants claim through mesne conveyance under this title, also on certain tax titles, which will be mentioned later on, and also by adverse possession.

The appellants claim that the fundamental question is whether the deed mentioned conveyed to Antoine Carmell and his wife a fee to them as tenants by the entireties, as claimed by defendants, or whether, as claimed by plaintiffs, it conveyed to the Carmells simply a life estate with a remainder in fee to their heirs. Counsel for the appellants say the solution of these questions depends upon whether the rule in Shelley's Case is applicable to this case. It is insisted:

“The rule in Shelley's Case does not apply, because the deed in the case at bar is not within the language or theory of that rule. *
“(&) The heirs of Antoine and Tesez are parties to this conveyance. They take as purchasers. Consequently the rule in Shelley's Case can have no application unless it be to the heirs of these heirs. If the rule in Shelley's Case is applicable at all to this deed, it can apply only to the heirs of Antoine and Tesez. These being parties of the second part, they constitute a new stock of inheritanee, and their heirs are those intended by the word ‘ heirs ’ in the habendum.
“(3) At the time this deed was made, the law of the Territory of Michigan was French law. The rule in Shelley’s Case was not a part of the French law, and this did not embody any such rule.”

Each of these propositions is argued at great length. The defendants controvert each of the above propositions at very great length. They insist the rule in Shelley’s Case was the law here, when the deed to the Carmells was made, that it is applicable to this case, that the Carmells obtained by virtue of the deed the title in fee as tenants by the entireties, that Mrs. Carmell joined in the deed from her husband, and that plaintiffs have no title upon which to base an action of ejectment. Defendant Nellis also claims the land in question under eight tax titles, all of which she claims are valid, and that defendants were therefore entitled to the direction of a verdict in their favor. It is claimed, further, that, as Mrs. Nellis defends under a title based primarily upon the sale of the lands for unpaid taxes, she is entitled to the benefit of the short statute of limitations applicable to such case.

It will be observed that the case presents a great many very interesting legal questions. In our view of the rec-cord, it is not necessary to discuss all of these; but a disposition of one of them must decide the case against the claim of appellants.

The record shows without dispute that as early as in 1854 William R. Barnard acquired tax titles to the land in controversy for the taxes of 1848, 1850, 1851, and 1852, and entered into the possession of the premises under his tax titles, and proceeded to build a hotel thereon. At this time he had no other title than his tax deeds. He and his grantees have been in open and notorious possession ever since, and are still in possession. Solomon O. Kings-bury acquired a tax deed for the taxes of 1860. He had no other title at this time. John C. Fitzgerald obtained a tax title for the taxes of 1877. At this time he had no title to the property, and none' of them owed any duty to the plaintiffs to pay these taxes.

There was no reason why each of these gentlemen might not obtain a tax title and have the title so obtained inure to his benefit. See Olmstead v. Tracy, 145 Mich. 299 (108 N. W. 649, 116 Am. St. Rep. 299), and the many cases cited therein.

Section 89 of Act No. 86, Laws 1853, reads as follows:

“ On the presentation of such certificate of sale to the auditor general, after the expiration of the time provided by law for the redemption of lands sold as aforesaid, he shall execute to the purchaser, his heirs or assigns, a deed of the land therein described, unless he shall have discovered that the same was improperly sold; which deed shall be prima facie evidence of the regularity of all the proceedings, from the valuation of the land by the assessors, to the date of the deed inclusive, and of title in the purchaser; and every such deed, when witnessed and acknowledged in the manner prescribed by law for witnessing and acknowledging deeds in other cases, and after it shall have been on record five years in the office of the register of deeds of the county in which the land therein described is situated, shall, except in cases where the auditor general has canceled the sale pursuant to law, or it has been annulled by a court of competent jurisdiction, be positive evidence that the land therein described was, by such deed, conveyed in fee simple to the grantee therein named, and his heirs or assigns; but such lands shall be subject to all unpaid taxes properly chargeable thereon.”

This law was amended in 1855 (Act No. 95, Laws 1855) by leaving out the provision making the deed after its record for five years positive evidence of a fee-simple title. This law was amended in 1858 by making provision that, in certain cases, after the tax deed had been on record two years, it should be positive evidence of title in fee simple, and the section ends with the following language:

“And no suit of ejectment shall be commenced to recover said lands, or title thereto sustained thereafter, by any person claiming or holding possession or title through any other source.” Act No. 32, Laws 1858, § 89.

Section 124 of the same law contains provisions as to what the auditor general shall do and as to the effect of the deed given by him, and ends with the statement:

“And no suit of ejectment or other suit for the recovery of possession shall be thereafter commenced to recover said lands, nor the title thereto [sustained] by any person claiming or holding possession or title through any other source.”

By section 133 of the same law it is provided that:

“In all cases in the prosecution or defense of an action of ejectment or trespass, by any person holding or claiming land, under any deed or deeds or other conveyance of land bid off or purchased for delinquent or unpaid taxes, the party so claiming, under and by virtue of such purchase for unpaid taxes as aforesaid, may show his title to said land and premises, whether the same was- derived under one or more purchases or sales for taxes or otherwise, and may give in evidence any and all deeds of conveyance or other evidence of such purchase as aforesaid, which he may at any one or more different times have received on sales for taxes, and may claim title under any or all of them.”

Section 135, Act No. 32, Laws of 1858, reads as follows:

“Any description of land bid off to the State at the annual sales, which shall have remained undisposed of for five years from the date when it was so bid off, shall vest in the State an absolute title in fee simple, and no suit of ejectment shall be commenced to recover said lands or title thereto, [or be] sustained thereafter by any person claiming or holding possession or title through any other source; but such lands shall be subject to sale at anytime by payment in like manner as other State tax lands, the amount of taxes due thereon and interest at the rate of ten per cent.; and after the expiration of five years, as aforesaid, said lands shall be stricken from the assessment roll, but shall be restored thereto after the same shall have been sold.”

We now quote from the brief of counsel:

“As relates to the two years’ statute of limitations, contained in the laws of 1858, we admit that this statute could have no application as against one in possession under the government title. In such case the statute, so far as it declares the deed to be conclusive evidence of title after being recorded two years, is unconstitutional. Case v. Dean, 16 Mich. 12; Groesbeck v. Seeley, 13 Mich. 329; Quinton v. Rogers, 12 Mich. 168. But the case at bar is different. Here the purchaser at tax title sale was in possession, and we seek to have the statute treated as a limitation law. As a limitation law, it maybe sustained, and, if the action is not brought within two years, it is barred. Semer v. Auditor General, 133 Mich. 569 (95 N. W. 732); People v. Turner, 117 N. Y. 227 (22 N. E. 1022, 15 Am. St. Rep. 498); People v. Turner, 145 N. Y. 451 (40 N. E. 400); Turner v. New York, 168 U. S. 90 (18 Sup. Ct. 38); Saranac Land & Timber Co. v. Comptroller of New York, 177 U. S. 318 (20 Sup. Ct. 642); Meigs v. Roberts, 162 N. Y. 371 (56 N. E. 838, 76 Am. St. Rep. 322).”

See, also, Act No. 153, Pub. Acts 1885, §§ 115-117.

Section 3896, 1 Comp. Laws, reads:

“No sale of any lands or deed made by the auditor general under the provisions of this act shall be set aside or annulled by any court of this State after the purchaser, his heirs or assigns, have been in actual and undisputed possession of such lands so sold or conveyed, for a period of five years from the date of such purchase or deed.”

Section 9714, 3 Comp. Laws, provides that, in case of ejectment to recover real estate, the action must be brought within 10 years after the right to bring the same shall have first accrued to the plaintiff, or to some person through whom he claims title, where defendant claims title under a deed made by some officer in this State authorized to make deeds upon the sale of lands for taxes assessed and levied within this State. It has been held that this section of the statute protects the person entering under tax titles after 10 years’ occupancy. Reilly v. Blaser, 61 Mich. 399 (28 N. W. 151).

Neither Mr. Kingsbury, Mr. Fitzgerald, Mr. Gorham, nor Mr. Barnard incurred at any time any duty to these plaintiffs. Mr. Gorham was not an occupant or owner of the lands when the taxes of 1877 were assessed. Both Mr. Kingsbury and Mr. Fitzgerald, as we have seen, were strangers to the title, owing no duty in respect of payment of taxes either to these plaintiffs or the State. The tax titles so acquired by these various purchasers were transferred and through mesne conveyances became vested in Mrs. Nellis. Mrs. Nellis owed to plaintiffs no duty which disabled her to make and rely upon these purchases. Her testimony is she did not even know of their existence and never heard of any of the Carmell family until this suit was brought. Under the authorities above cited, these tax titles are a perfect defense to this suit.

Upon the undisputed evidence, Mr. Barnard went into possession of the locus in quo under tax titles in 1854, and for more than 50 years these premises were occupied adversely to these plaintiffs; and such adverse occupation was open, notorious, hostile, and under claim of right.

Judgment is affirmed.

Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    AMERICAN TRUST & SAVINGS BANK v. MOORE.
    1. Bills and Notes — Certietoate oe Deposit — Banks and Banking — Sales.
    By keeping control of an automobile until informed by the issuing bank that a certificate of deposit which the vendor has received in payment is worthless, he bars himself from recovering in an action on the certificate on the theory that he has in good faith parted with value for the instrument.
    2. Sales — Reoaption—Rescission.
    An election to take back the consideration and disaffirm the transaction divests the seller of his ownership of the certificate.

      3. Same.
    In case of disaffirmance it is usually the duty of the vendor to tender back the consideration received in payment, as a condition of his right to retake the property transferred, except in case the paper is worthless in the hands of vendee or it is impossible to make the tender.
    4. Same — Election of Remedies.
    After discovering that the certificate of deposit received in consideration of sale was worthless, the seller has his choice of two remedies: to affirm the sale or to rescind and take back the property.
    5. Same.
    Having kept the automobile in charge of an agent and retained possession after discovering that the certificate was valueless, the vendor indicated an election to disaffirm and cannot recover on the certificate of deposit.
    Error to Genesee; Wisner, J.
    Submitted November 9, 1909.
    (Docket No. 117.)
    Decided June 6, 1910.
    Assumpsit by the American Trust & Savings Bank, trustee, against Bertelle R. Moore and Kittie E. Moore, copartners as the Bank of Linden, for the amount of a certificate of deposit. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Clifford A. Bishop and John H. Farley, for appellant.

      Andrew L. Moore {Henry 32. Walbridge, of counsel), for appellees.
   Hooker, J.

The plaintiff is the assignee in bankruptcy of the Weber Company, a Chicago concern, which was engaged in the sale of automobiles before it became insolvent. Gilmore applied to it to purchase an automobile. A machine and price were agreed on, the latter being $3,300. Gilmore tendered in payment a certificate of deposit, issued to him by the defendants, copartners, doing business in Michigan under the name of the “ Bank of Linden.” "Whether the machine was delivered unconditionally to Gilmore or not is a disputed question of fact. He was allowed to use it, at all events, the same being driven by a man whom plaintiff claims to have been employed by him at the suggestion of Weber. The certificate was deposited to the credit of the Weber concern, and both the bank with which it was deposited and Weber telegraphed the Bank of Linden to know if it was good. The following telegram was received by the Weber Company in reply: “No good. Hold certificate and arrest man.” Thereupon the Weber Company ordered the driver to leave the machine in a garage adjoining its salesroom, run by another concern, Orlando Weber being president of both companies. Gilmore disappeared, and has not been seen since. The machine remained from that time under the control of the Weber Company, and it was ultimately sold by said company for $2,000, after putting upon it somewhat extensive repairs and paying storage. This action was begun by the Weber Company soon after the discovery that defendants repudiated the certificate. Subsequently it was declared a bankrupt, and the assignee was substituted as the party plaintiff by stipulation. An amended declaration in all respects similar to the original declaration, except in the matter of the names of parties, was filed. This declaration was “the common counts,” with a copy of the certificate of deposit attached. To a plea of the general issue a notice was attached alleging the fraudulent character and invalidity of the instrument and the want of good faith in its purchase. A verdict for the defendants was directed, judgment was entered thereon, and plaintiff has appealed.

The counsel for the plaintiff in the opening statement to the jury admitted the foregoing facts, but claimed that the Weber Company was a purchaser in good faith and for value, and that plaintiff was entitled to recover the face of the instrument, but was willing, if it could be properly secured against a claim by Gilmore, to take a verdict for its actual damages, stated to be about $2,000, otherwise, it would ask the full amount of the certificate. To establish its case, plaintiff offered testimony showing its sale of the car and its acceptance of the certificate as payment. Cross-examination brought out many of the other facts relied on by the defense. This was supplemented by testimony offered by the defendants. In rebuttal, the plaintiff sought to show the expense put upon the car and what it had lost in the transaction. This was taken under objection. Counsel for defendants then asked that the testimony in rebuttal be stricken out and a verdict directed for the defendants upon the ground that unliquidated damages could not be recovered in an action on the common counts. The court thereupon directed a verdict for the defendants and plaintiff has appealed.

At the threshhold of the case was a disputed question of fact; i. e., whether plaintiff’s president parted with the title to the automobile. He claims that on receipt of the certificate he made and delivered a statement of the item marked “ Paid in full ” and signed by him, and delivered the machine to Gilmore, who took it away. On the other hand, defendants offered testimony tending to show that he actually kept control of it until he should hear from the certificate by putting it in the hands of one of plaintiff’s employes as driver for Gilmore. This was an important question, for, if defendants’ claim is found true, it cannot be said that the plaintiff parted with value for the instrument, and therefore it could not recover, but this was a question that the court erred in taking from the jury, unless some other question in the case justified such a charge. It is claimed that there is at least one such question in the case.

Recaption. It is contended that, by the recaption of the automobile, the plaintiff recovered back all that it paid Gilmore for the certificate, and therefore that it cannot now claim to be a purchaser for value; that this was a rescission of the contract; and that it had no longer any title to the certificate, having repudiated the transaction upon which its alleged title rests. Let us suppose that it had paid $3,300 in money for this certificate, and had succeeded in recapturing the identical money paid. We doubt if it would be, and still more if it could be, successfully contended that the plaintiff still had a title to the instrument, which under the old case of Vinton v. Peck, 14 Mich. 287, would entitle it to sue upon and recover the full face of the certificate. In that decision we held that if a purchaser in good faith paid any value, the face of the note, and not the lesser amount paid, was the measure of damage in a suit upon the paper. See, also, Hunter v. Parsons, 22 Mich. 96.

Upon what ground, then, could we hold, as I think we would, that the plaintiff could not recover, except upon the theory that, having elected to take back his money, he no longer owned the note. It might be a rescission though he did not recover all or any of the money, and the effect of the disaffirmance would be the same. We all know that in such a case it is usually the duty of the vendor to tender back the note or property paid, as a condition to the right to recover his property. Exceptions to this condition are when, as in this case, the paper is worthless in the hands of the vendee, and where the vendor is unable to tender back the paper. In this case money was not paid for the certificate, but upon plaintiff’s theory an automobile was sold and delivered. Grant it; but two or three days later the plaintiff acted. It had a choice of remedies, viz.: (1) It might have let the sale stand and rely on its bona fides. (3) It might disaffirm the contract and take its property. It claims that it did neither, but that it seized the automobile for the benefit of the defendants, admitting that it was a wrongdoer in taking the property.

We have examined the proof in this case, and we think that it conclusively shows a plain case of rescission as against Gilmore in law. Having done this, plaintiff cannot recover upon the instrument, which it sought to do, and the court did not err in saying so.

The judgment is affirmed.

Ostrander, Brooke, and Blair, JJ., concurred.

Montgomery, C. J., who heard the arguments in this case, resigned before decision rendered.