author: Brooke, J.

text:
    WALLING v. POULSEN.
    1. Principal and Agent — Admissions—Creation of Relation— Ratification.
    A broker who sends.an employé to the owner of land which he has listed, and secures an option through the untrue representations of the employé, adopts the acts of the latter as his own by acting on the option.
    3. Same — Broker of Real Estate — Creation of Agency.
    Testimony of the plaintiff’s witnesses, although it was contradicted by defendant, that defendant stated he guessed he could afford to list real property of the plaintiff without an exclusive right of sale, previously refused by the owner, tends to support a verdict finding the existence of the relation of principal and agent.
    3. Same — Ratification of Agent’s Acts — Fiduciary Relations —Personal Profits of Agent.
    The owner of real property, whose agent sells at a greater price than he accounts for, may elect to affirm the transaction, and recover a judgment at law for the value of the excess obtained in the form of mortgage at six per cent, on adequate security, and need not await the maturity of the instrument.
    4. Same — Value—Mortgages.
    Judicial notice will be taken that a mortgage for §100 at six per cent, interest on land worth §500 is the equivalent of cash.

      5. Same — Equity—Remedies fob Accounting — Exclusiveness of Equitable Remedy.
    The existence of a remedy in equity to impress proceeds of the sale of realty by a broker with a trust in favor of the principal does not bar an action of assumpsit for the value of such proceeds.
    Error to Calhoun; North, J.
    Submitted February 8, 1910.
    (Docket No. 50.)
    Decided March 19, 1910.
    Assumpsit by Earl G. Walling and Elizabeth Walling against Alfred E. Poulsen for money had and received. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Affirmed.

      J. M. & J. L. Powers, for appellant.
    O. 8. Clark, for appellees.
   Brooke, J.

Plaintiffs were owners of a lot in Battle Creek, and defendant is a real estate dealer in the same city. In March, 1907, plaintiffs, intending to leave the city, and desiring to dispose of all their property therein, gave to defendant a list, in which was included the lot in question. Upon that occasion defendant endeavored to secure from plaintiffs a contract for the exclusive handling of the property, but this the plaintiffs declined to give, whereupon plaintiffs testify defendant said:

“Well, this is a pretty good line of property, and I guess I can afford to list it without a contract for exclusive sale.”

Defendant denied making this remark, and testified that after making a list of plaintiffs’ property, he said, “ Well, we will see,” and left the house, and upon reaching his office threw the memoranda he had made into the wastebasket. A few days later he showed a lady (a prospective purchaser) over the Walling house. Heat no time advised the plaintiffs that he had concluded not to handle their property. On September 26, 1908, defendant sent one Marshall, an employé in his office, to plaintiffs with instructions to secure from them an option upon the lot in question to himself, if possible. After considerable negotiation Marshall secured the option at the price of $400. Thereupon defendant sold the lot to one Price for $500, receiving $400 in cash and a mortgage for $100 upon the lot, which was made to run to his wife at his request. The deed was made directly to Price by plaintiffs, at defendant’s request. Upon learning that defendant had actually received $100 more for the lot than he had paid over to them, plaintiffs (after demand) sued in assumpsit to recover that amount. Judgment having been rendered against defendant, he brings the case here by writ of error.

The first 24 assignments of error relate to the admission of testimony touching statements made by Marshall, tending to show that he was acting as agent for defendant. It becomes unnecessary to consider these assignments, because defendant himself testified that he sent Marshall to plaintiffs as his agent, and that he acted upon the information (option) secured by Marshall from plaintiffs at his request.. Under these circumstances it is elementary that defendant is bound by any statements made by Marshall in the course of the transaction.

Whether, at the time defendant secured the option from plaintiffs, he was their agent, and therefore bound to disclose to them all the facts and circumstances within his knowledge affecting their interest, was a question of fact to be determined by the jury. Upon this phase of the case we have examined the charge with care, and find that the instructions given were unusually full and careful; that they correctly state the law, and clearly protect defendant’s rights. The relationship of principal and agent being established by the verdict of the jury, it follows that defendant could not deal with the property of his principals, for his individual benefit, without a full disclosure to them of all the facts within his knowledge which might affect their judgment, and an unequivocal severance of the fiduciary relations theretofore existing. Moore v. Mandlebaum, 8 Mich. 433; People v. Overyssel Town ship Board, 11 Mich. 222; Hannan v. Prentis, 124 Mich. 417 (83 N. W. 102), and cases cited. See, also, 31 Cyc. p. 1430 et seq., and cases cited.

Defendant urged upon the trial court, and still insists, that a verdict should have been directed in his favor for the reason that, the plaintiffs having elected to affirm the contract made by him, and accept and retain the $400 (being all the actual money defendant received), they cannot maintain an action at law for the balance represented by the mortgage until that balance is actually received by defendant. This theory would postpone plaintiffs’ right of action for two years at least, and for such further period as defendant chose to extend the time of payment of the mortgage. We think the court may take judicial notice of the fact that a 6 per cent, mortgage for $100, upon vacant land selling for $500, is the equivalent of, and readily convertible into, cash.

As suggested, plaintiffs might have had recourse to the equity side of the court, to have the holder of the mortgage declared to be a trustee for them, but this fact does not prevent them from maintaining their action upon the law side of the court. In Moore v. Mandlebaum, supra, the court said:

“But it is objected that the plaintiff’s remedy is in equity, and that this is an attempt to convert the action of assumpsit into a bill in equity. We do not mean to say that the plaintiff could not have sustained a bill in equity upon the facts of this case. A court of equity might sustain such a bill for the purchase money as founded upon the notion of a trust, and the plaintiff might he entitled to a discovery. * * * But if, for want of such discovery, this action is less advantageous to the plaintiff, that can be no ground of complaint on the part of defendant. The plaintiff may waive his right to discovery, and take upon himself the risk of being able to prove his case without it. We understand the law to be well settled that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties; and, if it appear from the whole case that the defendant has in his hands money which, according to the rules of equity and good conscience, belongs or ought to be paid to the plaintiff, he is entitled to recovery, and that as a general rule, where money has been received by a defendant under any state of facts which would in a court of equity entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action.”

In this case the principle laid down in Beardslee v. Horton, 3 Mich. 560, was followed and affirmed. The court has since frequently cited and approved it. See Harty v. Teagan, 150 Mich. 75 (113 N. W. 594), and cases there cited.

The other errors assigned have been considered, but we find them to be without merit.

The judgment is affirmed.

Montgomery, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BEUTHIEN v. DILLON.
    1. Constitutional Law — Taxation—Statute of Limitations.
    Act No. 84, Pub. Acts 1903, is constitutional and valid in limiting the time to six months in which to institute proceedings to vacate or annul any tax homestead deed.
    2. Equity — Laches — Taxation — Setting Aside Judicial Proceedings.
    A suit to avoid the decree of the circuit court for irregularities in proceedings for the sale of lands for taxes is barred by the laches of an owner who neglects for twenty-four years to pay any taxes and delays for upwards of nine years to attack the determination of the auditor general and commissioner of the State land office declaring them to be tax homestead lands.

      3. Same — Pleading—Equity Practice — Failure to Deny Averments of Cross-Bill.
    Possession of the defendant, averred in the cross-hill and not specifically denied, is not admitted by a complainant whose bill avers that the lands involved are wild and nninclosed.
    Appeal from Roscommon; Sharpe, J.
    Submitted February 8, 1910.
    (Docket No. 179.)
    Decided March 19, 1910.
    Bill by Enewold A. Beuthien against Thomas Dillon and others to quiet title to lands and vacate the sale of lands delinquent for taxes. From a decree for complainant, defendants appeal.
    Affirmed.

      Gaffney & Miltner, for complainant.

      Dayton W. Glosser, for defendants Dillon and Dewey Stave Co.
    On October 25, 1905, complainant purchased from the State of Michigan certain lands in Roscommon county, for an expressed consideration of $1,422.11. These lands had been acquired by the State by deeds from its auditor general, bearing date May 15, 1896, for unpaid taxes for years between 1880 and 1893. The deeds contained the recital that the auditor general and the commissioner of the State land office had caused examination of the lands to be made, as provided in section 127, Act No. 206, Pub. Acts 1893 (1 Comp. Laws, § 3949), and that a certificate had been filed by the examiner, showing said lands to be barren, swamp or worthless lands, and that said lands had been abandoned by the owner. Thereafter the lands were withdrawn from taxation, and held by the State land commissioner as State tax homestead lands, and later were by him withdrawn from homestead, appraised, and sold to complainant. In July, 1906, complainant filed his bill of complaint against defendants, each of whom held the legal title to some part of the land conveyed to him by the State, averring that said lands are in a wild state and are in the commons without inclosure, and praying that the title of the said defendants be decreed null and void, as against complainant.
    Two of the defendants, Thomas Dillon and the Dewey Stave Company, answered and filed cross-bills, in which they claimed that they were in possession of the lands of which they severally held the legal title, and averred that the taxes for which their lands were sold were void, and that the proceedings leading to the decree and sale were irregular and void. To these cross-bills complainant answered :

      ”a. This complainant neither admits nor denies the matter as alleged in the several answers in the nature of cross-bill by these defendants, but leaves defendants to their respective and several proofs as therein stated.
    “6. That the plaintiff, Enewold A. Beuthien, further alleges that the said defendants are hereby precluded from attacking his title as shown by his bill of complaint and that on account of the laches of said defendants, they and each of them, are estopped by reopening the matter of irregularity of record relating to taxes and decree of sale.
    ‘ ‘ c. Therefore the complainant prays that the said matter as set up in these respective answers and cross-bill to said bill of. complainant be dismissed and that the plaintiff may have the remedy as prayed for in the bill of complaint, with costs.”
    From a decree in favor of complainant, defendants appeal.
   Brooke, J.

(after stating the facts). At the hearing, the complainant offered in evidence the deeds from the auditor general to the State, dated May 15, 1896, and the deeds from the commissioner of the State land office to himself, dated- October 25, 1905, and rested. The defendants offered in evidence the proceedings of the board of supervisors of Roscommon county, the sales book, the tax records, and the several files in the original proceedings on the petition of the auditor general, for the sale of the lands in question, for unpaid taxes, together with the circuit court journal of Roscommon county, so far as it related to such proceedings. This testimony tended to show that the taxes had been irregularly levied, and that the circuit court proceedings were in some particulars defective. It should have been considered by the circuit judge, if these defendants are now in a position to urge such irregularities and defects.

Act No. 211, Pub. Acts 1905, provides:

“ All deeds heretofore or hereafter made by the commissioner of the State land office upon sales of land, reserved and withheld from entry under the homestead right in pursuance of section 131 of Act No. 206 of the Public Acts of 1893, and acts amendatory thereto, shall be prima facie evidence of title in fee, in the grantee named in such deeds of the lands described therein.”

Act No. 84, Pub. Acts 1903, provides:

“ After the expiration of six months from and after .the time when any deed made to the State under the provisions of section 127 of Act No. 206 of the Public Acts of 1893, being the general tax law, and acts amendatory thereto, shall have been recorded in the office of the register of deeds, for the county in which the land so deeded shall be situated, the title of the State in and to the same, shall be deemed to be absolute and complete, and no suit or proceeding shall thereafter be instituted by any person, claiming through the original or government title to set aside, vacate or annul the said deed or the title derived thereunder: Provided, That as to all lands heretofore deeded to the State under the provisions of said section 127 of said Act No. 206 of the Public Acts of 1893, the title of the State thereto shall be deemed to be absolute and complete, after a period of six months from the taking effect of this act, and no suit or proceeding shall thereafter be instituted by any person, claiming through the original or government title to set aside, vacate or annul said deed or deeds or the title derived thereunder.”

If the foregoing act is constitutional, the appellants have no standing. This statute received consideration by the court, in People v. Christian, 144 Mich. 247 (107 N. W. 919), when Mr. Justice Grant, speaking for the court, said:

“The statute (Act No. 84, Pub. Acts 1903) imposes a limitation to the right to bring suit to six months from the time the act took effect. The act took effect in September, 1903. A like statute of limitations was held valid by this court. Semer v. Auditor General, 133 Mich. 569 (95 N. W. 732).”

See, also, Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756), and Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204 (109 N. W. 257). Again, in the case of Owens v. Auditor General, 147 Mich. 688 (111 N. W. 356), the court said:

“ Counsel contend that by reason of the provision of Act No. 84, Pub. Acts 1903, all laches are excused, and the owner of the original title is given six months after said act took effect in which to attack the sales. We do not so interpret said act, but think that it was intended to fix a period limiting a time after which certain sales cannot be attacked.”

It is urged on behalf of defendants that these statements of the court are mere dicta. We do not so construe them. Whatever may be said of the language upon this particular point in Owens v. Auditor General, supra, we think it can scarcely be claimed that the statement of Mr. Justice Grant, in People v. Christian, supra, does not, in effect, pass upon the constitutionality of the act. In any event, the decision and reasoning in the case, Semer v. Auditor General, supra, where a similar statute of limitations was held constitutional, is conclusive. Defendants rely upon the decision in O'Connor v. Carpenter, 144 Mich. 240 (107 N. W. 913). There, the defendant was in possession, the plaintiff brought ejectment, and the court was called to pass upon section 140, Act No. 229, Pub. Acts 1897 (1 Comp. Laws, § 3959). The court held the section under consideration bad, as not being “due process of law.” Further:

“It is an attempt to compel one who is in full possession of his property and who thereby makes the most positive assertion of his rights, to resort to a court, not to gain his own, but to restrain another from asserting an unwarrantable claim.”

No such situation is presented by the case at bar. The defendants, both nonresidents, paid no taxes for 24 years. After default of 15 years, and in 1896, the auditor general and the commissioner of the State land office, at the request of the township board of the township of Markham, caused the lands to be examined under the provisions of section 12?, Act No. 206, Pub. Acts 1893 (1 Comp. Laws, § 3949), and a certificate was filed, declaring them to be barren, swamp or worthless, and abandoned by the owner. For nine years this determination has stood unchallenged by these defendants, during which time the lands have been withdrawn from taxation. Under the decision in Griffin v. Kennedy, supra, this determination is conclusive, not having been assailed by suit within six months. In the case of Owens v. Auditor General, supra (to which particular attention is directed), this court refused to entertain a petition to set aside a decree, made ten years before, solely upon the ground of laches. Leaving out of consideration the statutes, and examining the appellants’ cross-bills alone, we are of opinion that relief should be denied because of their laches.

Appellants urge that the record shows that it is admitted they are in possession, because of the averment of possession in the cross-bills, and the answer of the complainant above quoted. We cannot agree with this contention. The original bill of complaint averred that the lands were in a wild, uninclosed state. This the cross-bills deny, and thus an issue was raised, but no proof was offered by defendants to show possession, either at the time the determination of abandonment was made or at any time since.

Under these circumstances, we do not think it can be said that, because complainant did not specifically deny the averment of possession in his answer to the cross-bills, he thereby admitted it. The entire course of action of defendants, as disclosed by the record, negatives the fact.

The judgment is affirmed.

Blair and Stone, JJ., concurred with Brooke, J.

McAlvay, J., I concur on the ground of laches.

Montgomery, C. J., concurred with McAlvay, J.


author: Blair, J.

text:
    BATES v. KITCHEL.
    1. False Imprisonment — Justices op the Peace — Want op Jurisdiction to Imprison — Witnesses.
    An action for false imprisonment lies against a defendant who secures the arrest and detention, by a circuit court commissioner and justice of the peace, of a material witness in a criminal proceeding begun against the defendant, the officers having no jurisdiction under 3 Comp. Laws, § 11856 et seq.,as amended by Act No. 177, Pub. Acts 1875, and Act No. 141, Pub. Acts 1879, to imprison a witness for failure to procure bail.
    2. Same — Privileq-e—Judicial Acts — Want op Jurisdiction.
    An imprisonment under such acts, for failure to give bail on the part of a witness, is an act without any jurisdiction and not privileged as to the justice or the defendant, under the rule excusing j udicial officers for errors of j udgment in matters within their jurisdiction.
    Error to Branch; Yaple, J.
    Submitted February 9, 1910.
    (Docket No. 127.)
    Decided March 19, 1910.
    Case by Charles Bates against Horace Kitchel for false imprisonment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Frank B. Reynolds and L. F. Humphrey (F. A. Lyon, of counsel), for appellant.

      H. H. & B. E. Barlow, for appellee.
   Blair, J.

This is an action for false imprisonment based upon an alleged unlawful commitment of the plaintiff for refusing to enter into a recognizance to appear and testify upon the appeal of a criminal cause triable before a justice of the peace. Defendant in this case, who was the respondent in the criminal cause, after his conviction and on July 22, 1908, filed the required recognizance with the justice and appealed the cause to the circuit court. After taking his appeal, and on the same day, defendant filed his petition with the circuit court commissioner, setting forth, among other things:

“That one Charles Bates was sworn as a witness in said cause on behalf of the prosecution; that he is a material witness in said cause; that he is informed and believes that said witness is a resident of the State of California and intends to leave the jurisdiction of the circuit court for the county of Branch and return to the State of California before the trial of said cause in said circuit court.”

The petition prayed:

“That an order may be issued directed to the sheriff of said county, requiring him to forthwith bring the said Charles Bates before Charles F. Howe, circuit court commissioner, to show cause why he should not be required to enter into a recognizance to appear at the October term of the circuit court, to be held in and for the said county of Branch at the city of Coldwater in said county on the 5th day of October, A. D. 1908, then and there to testify as to his knowledge concerning the matter of the complaint filed in the cause of People v. Horace Kitchel, and further your petitioner prayeth not.”

On July 24, 1908, the following order was made by the commissioner:

“ On reading the sworn petition filed in said cause and on hearing proofs taken therein, the said Charles Bates being present in person, and the said Horace Kitchel appearing by B. E. Barlow, his attorney, it is ordered that the said Charles Bates enter into a recognizance with one sufficient surety in the sum of $500 for the personal appearance of the said Charles Bates, at the nest October term of the circuit court to be held in and for said county of Branch, to testify on behalf of said Kitchel upon a charge against said Horace Kitchel, and in default, refusal, or failure of said Charles Bates to enter into said recognizance as aforesaid, he shall be committed to prison, there to remain until he complies with this order, or until he is discharged according to law.”

In compliance with the order of the circuit court commissioner which was filed with him, the justice of the peace made an order committing said Bates to the county jail. He gave bond for the jail limits, and subsequently obtained his discharge upon writ of habeas-corpus and brought this suit. At the close of the proofs in the present case, the circuit judge directed a verdict in favor of the defendant, and plaintiff brings the case to this court for review upon writ of error.

The circuit judge held that the circuit court commissioner and the justice of the peace—

“ Had jurisdiction of the person of plaintiff and of the subject-matter of requiring him to enter into a recognizance to appear and testify as a witness. It is not a case where the entire subject-matter was outside of and beyond the jurisdiction of the commissioner and the justice. I think a distinction should be made and emphasized between a case where an officer is acting simply in excess of his jurisdiction and one in which he attempts to act in respect to a subject-matter of which he clearly has no jurisdiction. No question is made but that the justice and the commissioner acted in entire good faith in all that they did. The justice was called upon to decide whether he had authority under the order made by the commissioner to issue the order of commitment. He erroneously decided that he had. Did such erroneous decision render him responsible in damages to plaintiff, Bates ? His assumption of jurisdiction to make the order of commitment arose from an error of law on which different opinions could honestly be entertained by reasonable men. He did not acquire jurisdiction by deciding that he had it, but erred in deciding that he had jurisdiction to proceed and make the order, and his error in that respect was an error of judgment upon a question of law; and the same may be said in respect to the action of the circuit court commissioner in making the order which he did. There is no public policy which requires that they should be responsible for such error in a civil action of this nature. I think that such protection to the officer who acts in good faith should be extended to justices of the peace and other judicial officers with special or limited jurisdiction, and is necessary to the independence and usefulness of the judicial officers. If the circuit court commissioner and the justice of the peace should not be held responsible in an action of this nature, then, as I view it, the defendant, Kitchel, should not be held amenable to this action for damages for false imprisonment.”

The jurisdiction of the justice over the subject-matter rests upon section 1036, 1 Comp. Laws; that of the commissioner upon section 11817. Section 1036 provides for appeals from judgments in criminal cases triable before justices of the peace and for the discharge of the person convicted upon giving the required recognizance; and “the complainant and witnesses may also be required to enter into recognizances, with or without sureties, in the discretion of the court, to appear at said circuit court,” etc. This section was amended in 1909, retaining the language quoted. Act No. 23, Pub. Acts 1909. There is no provision in this section or elsewhere expressly authorizing commitment of a witness to jail for refusing to give a recognizance. Upon this ground the circuit judge held that the justice and the circuit court commissioner exceeded their jurisdiction.

Chapter 330 of the Compiled Laws, relative to the examination of accused persons in cases not triable before justices of the peace, contains the following provisions:

“ (11856) Seo. 19. Upon any adjournment of the examination before such magistrate, or when the prisoner is admitted to bail or committed by the magistrate, such magistrate shall bind by recognizance the complainant and all material witnesses against such prisoner to appear and testify upon any day to which such examination may be adjourned, or at the next court having cognizance of the offense, and in which the prisoner shall be held to answer, and it shall be competent in all cases contemplated in this section for any magistrate in the county where such offense is alleged to have been committed, to issue process to compel the attendance of any witness or witnesses before him, at any time, in vacation or between the terms of the court having cognizance of the offense, for the purpose of compelling such witnesses to enter into any recognizance required by the provisions of this section.
“ (11857) Sec. 20. If the magistrate shall be satisfied, by due proof, that there is good cause to believe that any such witness will not perform the condition of his recognizance, unless other security be given, such magistrate may order the witness to enter into a recognizance, with one or more sureties as may be deemed necessary, for his appearance at court.
“(11859) Sec. 22. All witnesses required to recognize, either with or without sureties, shall, if they refuse, be committed to prison by the magistrate, there to remain until they comply with such order, or be discharged according to law.”

All of the sections referred to being then in force, the legislature of 1875 adopted the following act:

“An act to release witnesses in criminal cases from giving bail.
“ Section 1. The People of the State of Michigan enact, That it shall not be necessary in any criminal case for any witness to give bail for his appearance as a witness in such cause, unless required to do so by the order of a judge of a court of record. All laws contravening this act are hereby repealed.
“ Sec. 2. This act shall take immediate effect.” Act No. 177, Pub. Acts 1875 (3 Comp. Laws, § 11817).

The act was amended by the legislature of 1879 by inserting in section !,■ after the words, “ judge of a court of record,” the words, “or a circuit court commissioner.” Act No. 141, Pub. Acts 1879.

It seems plain from the title of the act, its subject-matter, and the repealing clause, that it was the intention of the legislature to take from justices of the peace all authority or control over the subject of requiring bail of witnesses for their appearance, whether in criminal causes triable before them or not cognizable by them, and to repose such authority and control solely in judges of courts of record and circuit court commissioners. Was it also the intention of the act of 1875 to deprive such magistrates of authority to require personal recognizances of witnesses as theretofore empowered by the sections quoted ? The act in question uses the word “ bail ” throughout, and not at all the word “recognizance.” The term bail,” as used in the statute, imports suretyship; the securing of the witnesses’ attendance through the medium of others as sureties for such attendance.

The previous statutes quoted do not, therefore, contravene the provisions of the act of 1875, except in so far as they authorize the justice of the peace to require sureties to be given by the witnesses. Although the repealing clause is sweeping in its terms, we do not think it reasonable to conclude that it was the intention of the legislature to repeal the provisions relative to the appeal of criminal cases cognizable by justices of the peace or provisions relative' to examinations before such officers which are not inconsistent with the act, but rather that the intention was to repeal such portions of the law only as were in contravention of the provisions of the act relative to giving bail. We therefore hold that the right to require personal recognizances of witnesses remains unaffected by the act of 1875, but agree with’ the circuit judge that, since no statute authorizes a justice of the peace to imprison a witness for refusing to enter into a recognizance, no such power can be exercised. Bickley v. Com., 2 J. J. Marsh. (Ky.) 572; Comfort v. Kittle, 81 Iowa, 179 (46 N. W. 988).

We are strengthened in this conclusion by the fact that such power of imprisonment was expressly conferred upon examining magistrates by section 11859. In short, our conclusion is that the act of 1875 modified the provisions relative to witnesses only so far as to commit the entire subject of requiring sureties for their appearance to the officers mentioned in the act, and that it was not the intention of the act of 1875 to confer by implication a power of imprisonment which did not theretofore exist, and the circuit court commissioner had no legal authority to order the plaintiff’s commitment. Comfort v. Kittle, supra. It follows that the authority retained by justices of the peace to require personal recognizances of witnesses in cases triable before them and of circuit court commissioners to require bail in such cases is not capable of enforcement, and, for all practical purposes, is a nullity.

It remains to consider whether the justice of the peace and, therefore, the defendant, were protected against liability by the rule excusing judicial officers for errors of judgment in the performance of judicial duties in cases where they have jurisdiction. We do not think this case comes within the rule. Under the terms of the statute, neither the commissioner nor the justice had any jurisdiction for imprisoning the defendant, and in attempting to do so they were as clearly acting outside of their jurisdiction as they would have been in directing the imprisonment of a defendant in an action on a promissory note upon default of payment of the judgment. La Roe v. Roeser, 8 Mich. 537; Guenther v. Whiteacre, 24 Mich. 504.

The judgment is reversed, and a new trial granted.

Montgomery, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    GRAVES v. VON BELOW.
    1. Husband and Wife — Contracts—Consideration—Marriage Settlement.
    The assignment of a policy of insurance, as a settlement, in contemplation of marriage, upon the prospective wife, is supported by a valid consideration.
    2. Trusts — Power of Attorney — Revocation—Insurance Policy.
    A trust in the funds receivable from an insurance policy, executed by the assignee of the policy, without consideration, transferring an interest therein to the insured, the husband of the assignee,' and authorizing a payment of part thereof by the trustee to creditors of the insured, is revocable when based on and limited by a previously executed power of attorney of substantially the same import, in which a right of revocation is reserved.

      Appeal from Wayne; Murfin, J.
    Submitted February 9, 1910.
    (Docket No. 129.)
    Decided March 19, 1910.
    Bill of interpleader by Henry B. Graves against Maude 0. Von Below and Clarence H. Gould to determine the rights of defendants in the proceeds of a policy of insurance. From a decree for defendant Von Below, defendant Gould appeals.
    Affirmed.

      Edgar N. Durfee, for appellant.

      Robert E. Bunker, for appellee.
   McAlvay, J.

Complainant filed his bill of inter-pleader in the circuit court for Wayne county, impleading the defendants, asking the court to determine their respective rights and interests in and to certain moneys in his hands after determining his proper charges, and the amount to be paid by him into the court pending this litigation, and to relieve him from all further responsibility; also to enjoin said parties from prosecuting any suits against him to recover said funds which came into his hands and were held by him as a trustee.

Stated as briefly as possible, the facts are: That these defendants were formerly husband and wife. That prior to their marriage, which occurred November 11, 1903, defendant Gould was owner of a fully paid endowment policy of life insurance of $10,000, payable to his legal representatives in event of his death prior to March 18, 1909, and, in case he survived that date, that sum and all earned dividends to be paid to him. After their engagement and before their marriage, and in consideration of that approaching event, and for the purpose of' making provision for her, defendant Gould assigned said policy absolutely and without condition to his affianced wife. Both before and after such assignment and the marriage of these parties, he was involved in financial difficulties and in litigation with his creditors. Not long after the marriage they went to the Philippines, where they remained for some time. They then, returned to the State of Washington. They had disagreements, and the record shows that he deserted her at Seattle, and she came east to Detroit. Creditors threatened to attack the assignment of this policy of insurance made to her, and she, desirous of a reconciliation, and willing, for that purpose, to pacify creditors, on March 3,1904, made a power of attorney and written authority to complainant to take the necessary steps to preserve the policy and collect the amount due thereon when the same matured, and distribute the same in certain proportions. Complainant, as the professional adviser of both parties, desired a reconciliation between them, and undertook to bring it about under such authority. The authority and power of attorney are one instrument, and read as follows:

“Know all men by these presents that I, Maude C. Gould, have constituted and appointed, and by virtue of these presents do constitute and appoint Henry B. Graves, of Detroit, Michigan, my true and lawful attorney, in my name,.place and stead to go to Seattle, Washington, and take whatever steps that may be necessary in his judgment to preserve my interest and the interest of my husband, Clarence H. Gould, in policy Ro. 420,450, issued by the Equitable Life Assurance Company of the United States upon the life of Clarence H. Gould and assigned to me, to the end that after the payment of not more than two thousand ($2,000.00) dollars for the purpose of satisfying the claims of creditors of Clarence H. Gould, and the further payment of the expenses and services of my said attorney, the proceeds of said policy at the maturity of the same may be collected and disposed of in the manner and under the conditions set forth in the paper hereto attached, marked Exhibit A, and made a part hereof; that for the purpose of carrying into effect the above object, I do hereby authorize and empower my said attorney to do each and every act in the premises that I could do if personally present, and to sign my name to all papers that may be necessary in the premises, and otherwise act in my name, place and stead, without the power of substitution, but hereby reserving full power of revocation in writing.
“Signed,” etc.
Exhibit A:
“Detroit, Mich., March 3, 1904.
“ My Dear Mr. Graves:
“ Regarding papers turned over by me to you belonging to Mr. Gould, you can with exception of insurance policy return to Mr. Gould as requested by him. As to policy No. 420,450, in the Equitable Life Insurance Company of the United States on the life of Clarence H. Gould, assigned to me; you are hereby authorized to take the necessary steps to preserve this policy and collect the amount due therein when same matures, so that not more than $2,000.00 is paid to creditors, and in case Clarence H. Gould and myself are not separated and continue to live together at that time, I receive one-half from the proceeds and in case of separation I receive |- more from the proceeds. I mean -| of his half.
“Maude C. Gould.”

No consideration passed from defendant Gould for the provisions made for him in these papers. Complainant went to Seattle to meet Mr. Gould and execute his mission. He used $2,000, as authorized, in payment to creditors. This was not sufficient, but required $600 more. Eor this purpose, another instrument was executed to him by Mrs. Gould on May 19, 1904, giving him such authority, and referring to the papers above set forth, and authorizing him to proceed according to instructions of the letter. He did so, but no reconciliation could be effected, and he returned to Detroit. From time to time complainant loaned or furnished- Mrs. Gould money in such amounts as she requested until no further amount could b9 loaned on her apparent interest in the policy. Proceedings for divorce were instituted by her which proceeded to a pro confesso decree for divorce, including permanent alimony of $2,500, which was entered February 23, 1805. No personal service was had upon Mr. Gould, and he did not appear or take any part in the divorce case. On April 8, 1909, Mrs. Gould, then Mrs. Von Below, revoked the power of attorney given to complainant. The dispute in this ease concerns the amount remaining in his hands, for a proper disposition of which he has invoked the action of the proper court. A decree of interpleader has been duly entered, and the fund has been paid into court by complainant, and he has been discharged. The ease was . heard in open court upon pleadings and proofs. Defendant Gould was not present or a witness. The court below granted a decree in favor of Mrs. Von Below, giving her the entire fund in dispute. From this decree defendant Gould has appealed.

As the appellant contends that this trust was not revocable because it was created, as he claims, by the agreement between complainant and Mrs. Gould, executed May 19, 1904, and as this agreement is not included, except by reference, in the statement made by us, we think it important to give it here. It reads:

“Whereas, upon March 3, 1904, Maude C. Gould, by an instrument in writing, did constitute and appoint Henry B. Graves, of Detroit, Michigan, her true and lawful attorney to take whatever steps that might be necessary in his judgment to preserve her interests and the interests of her husband, Clarence H. Gould, in policy No. 420,450 issued by the Equitable Life Assurance Society of the United States, upon the life of Clarence H. Gould, and assigned to Maude O. Gould to the end that after the payment of not more than two thousand ($2,000.00) dollars for the purpose of satisfying the claims of creditors of Clarence H. Gould and the further payment of the expenses and services of said attorney, the proceeds of the said policy at the maturity of the same might be collected and disposed of in the manner and under the conditions set forth in a paper marked ‘ Exhibit A.’ and attached to said power of attorney; and
“Whereas, said Henry B. Graves, pursuant to said power of attorney, has taken certain steps for the purposes above set forth, and to that end has secured an agreement with W. J. Gould & Co., a corporation, and with Lona M. Gould, both creditors of said Clarence H. Gould, to the effect that upon the payment of the sum of two thousand six hundred ($2,600.00) dollars, all claims and demands of every kind and nature of said W. J. Gould & Company and said Lona M. Gould against said Clarence H. Gould should be canceled and discharged; and
“Whereas, in order to reach the agreement aforesaid, it has been necessary to increase the amount to be expended from two thousand ($2,000.00) dollars to two thousand six hundred ($2,600.00) dollars, and in order to raise the money to carry out said agreement, it will be necessary that said Maude O. Gould borrow the sum of two thousand six hundred dollars ($2,600.00):
“Now, therefore, it is agreed, in duplicate, between said Maude O. Gould and Henry B. Graves as follows:
“(1) That the insurance policy aforesaid shall be assigned to said Henry B. Graves, as trustee, for the purpose of procuring said loan, and for the further purpose of carrying out and fulfilling the terms and conditions of the power of attorney aforesaid, which is hereto attached and made a part hereof.
“ (2) That said Henry B. Graves shall either loan to said Maude C. Gould, or procure a loan for Maude C. Gould, of the sum of two thousand six. hundred ($2,600.-00) dollars with interest at the rate of 5 per cent, per annum, said loan to be due and payable on the 18th day of March, 1909, or to be renewed from time to time until said date.
“(3) That the proceeds of said loan shall be used by said Henry B. Graves in carrying out and fulfilling the agreement aforesaid with the creditors of Clarence H. Gould.
“(4) That upon the maturity of the policy aforesaid, to wit, upon March 18, 1909, said Henry B. Graves shall collect the amount then due upon said policy, in cash, and after the payment of the loan and interest aforesaid, and his expenses and services, the services amounting to five hundred dollars ($500.00) shall distribute the proceeds in the manner set forth in Exhibit A attached to the power of attorney aforesaid, with this exception, to wit: the sum of six hundred ($600.00) dollars and whatever interest has accumulated or has been paid upon the loan of two thousand six hundred ($2,600.00) aforesaid, shall be deducted from the share which would be paid to Clarence H. Gould under the provisions of said Exhibit A, and the amount of said deduction shall be paid to Maude C. Gould. The portion to be paid to Clarence H. Gould shall only be paid to him in the presence of Maude C. Gould if living.
“(5) That this agreement shall bind the executors, administrators and assigns of the respective parties, and also shall bind the successor in trust of said Henry B. Graves.
“Witness our hands and seals,” etc.

Our construction of this instrument is that it was executed to allow more than $2,000 to be used to satisfy Mr. Gould’s creditors, and, although it assigns title to the insurance policy to complainant, it in no way gives him further powers than he had under the power of attorney and directions attached. Without the first papers upon which it is based, and which are made a part of it, this instrument is not complete and could not be fully executed. It was made while the same conditions existed contemplating a payment to creditors and a reconciliation. As we find nothing in the record to the contrary, the interests of Mr. Gould referred to in these papers cannot be construed to be other than those we find specified and established thereby. The record does not show that she did not take the entire interest in this insurance policy assigned to her by defendant Gould in consideration of marriage and to make provision for her. The consideration was a good and valuable one. 1 Bishop on Married Women, § 775. There was no reservation, and the record does not support the contention that he had any interest in it. We also find that the transfer was a voluntary one on her part, made by these instruments to complainant for the purposes therein stated. The power of attorney with attached instructions and the agreement of May 19, 1904, by express terms are parts of one transaction. Whatever trust existed was created by these instruments. A revocation of this power of attorney given to complainant was made and executed by Mrs. Von Below, formerly Mrs. Gould, on April 8, 1909, and served on complainant on April 10th. It reads as follows:

“ Know all men by these presents that I, Maude O. Von Below of the city of Detroit, in the State of Michigan, formerly Maude O. Gould of said city, do hereby and by virtue of these presents absolutely revoke a certain power of attorney, bearing date the 3rd day of March, 1904, executed by me, wherein and whereby I did constitute and appoint Henry B. Graves, of Detroit, Michigan, my true and lawful attorney in my name, place, and stead, and did authorize and empower the said Henry B. Graves among other things after the collection of whatsoever moneys should be due me on policy No. 420,450 issued by the Equitable Life Assurance Society of the United States upon the life of Clarence H. Gould and assigned to me, to disburse said moneys so thereafter to be collected by him, my said attorney in fact, in accordance with and under the conditions set forth in a paper attached to said power of attorney and marked ‘Exhibit A,’ and made a part hereof. And I, the said Maude C. Von Below, herewith and hereby exercising the right expressly reserved in said power of attorney do as hereinbefore stated, expressly and finally and forever revoke to the said Henry B. Graves to disburse any of the funds which he shall collect upon the policy of insurance aforesaid to the said Clarence H. Gould, or to any person or persons for him, or in his behalf, or on his order of directions, and expressly order and direct that all moneys so collected by said Henry B. Graves except as to his own costs and charges shall be accounted for and paid to me.
“Maude C. Von Below.
“ Signed, sealed, and delivered in presence of,” etc.

The principal contention on the part of appellant in this case relates to the revocability of the trust. This is founded upon his construction of the agreement of May 19, 1904, which we have already considered. He insists that no power of revocation was reserved. It appears to us that the principles of interpretation invoked are not applicable. These instruments are to be construed together. They do not appear to be ambiguous or uncertain. It is admitted that, if a power of revocation was reserved, the decree of the circuit court should be affirmed. The case turns upon this proposition. In our opinion it is not necessary to discuss other questions. The contest between the parties relates only to the disposition of 30 per cent, of the fund in the hands of the court.

We find no difficulty in arriving at the conclusion that these agreements, which were founded upon this power of attorney, were revocable, for the reason that a power of revocation was, in terms, reserved in the power of attorney. Such revocation would terminate the trust. 28 Am. & Eng. Enc. Law (2d Ed.), p. 950.

We agree with the trial court in holding that the trust was terminated by revocation. The decree is affirmed, with costs, in favor of appellee.

Montgomery, C. J., and Brooke, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    PEOPLE v. BELTON.
    Criminal Law — Assault with Intent to Rob — Instructions to Jury — Intent.
    In a prosecution for assault with intent to rob, it is' error to charge the jury that the respondent, who conducted the saloon in which the complaining witness was assaulted, and who was not shown by direct evidence to have struck the latter, or to have taken or shared in the stolen money, could be found guilty if he was aiding and abetting the assault; since it would be necessary to find also that he shared the intent to rob.
    Exceptions before judgment from the recorder’s court of Detroit; Phelan, J.
    Submitted February 11, 1910.
    (Docket No. 160.)
    Decided March 19, 1910.
    Harry Belton was convicted of an assault with intent to rob.
    Reversed.

      Philip A. McHugh and William Henry Gallagher, for defendant.

      Philip T. Van Zile, Prosecuting Attorney, and Arthur W. Kilpatrick, Assistant Prosecuting Attorney, for the people.
   Stone, J.

The respondent and one George Stiles were jointly informed against in the recorder’s court of the city of Detroit. They were charged with having, on November 14, 1908, at the city of Detroit, made an assault, not being then and there armed with a dangerous weapon, in and upon one John Mundt, with intent the personal property, goods, and chattels of the said John Mundt then and there feloniously to rob, steal, take, and carry away.

The evidence showed that said John Mundt and a comrade by the name of Charles Beagle, on the evening of November 14th aforesaid, entered a saloon owned by the respondent Belton and his brother, to have a glass of beer. Upon entering, Beagle found some friends there, whom, with the bartender, he invited to drink with him. Beagle claimed that he ordered five drinks, and that he tendered in payment a $2 bill. The respondent Belton, who was a stranger to Mundt, was in the saloon at the time, standing near the end of the bar. The evidence is not clear as to the position of the parties, but they were all near each other. Beagle claims that he received back but $1.20 in change, and that he made some complaint to the bartender about the price charged for the drinks, whereupon he was struck down, but he does not claim to know who struck him. Mundt was also struck down at the same time, and he does not know who hit him. Beagle claims that he was assaulted but once, and that, when he came to, he thought the lights were turned down. He claims that he saw six or seven men over near the stove and Mundt in the center of them, but he saw no more blows struck, and he went out of the saloon, and did not return. Mundt claims that, after he was first knocked down, he arose and saw the bartender still behind the bar, but with his shirt sleeves somewhat bloody. He says that he commented on that fact to him, and that the bartender replied : “ Yes; and, if you don’t pay the 40 cents you owe, you will never go out of here alive.” Mundt claims that he expressed a willingness to pay, and reached to his hip pocket and took out his pocketbook, when he was again knocked down. When he came to the second time, he claims that he found the saloon deserted, and his pocketbook, containing $23, missing. Mundt does not claim to know who hit him on either occasion. One Smith testified that he saw respondent Belton fighting with somebody, but he could not say who it. was. He said:

“ They were fighting. There were two or three mixed up in it. Mr. Belton was fighting with just one. I did not notice anybody helping Belton. There were only two fighting; that is all I noticed. I did not know the other party that he was fighting with. I wouldn’t recognize him again if I saw him.”

It appears that Smith did not know either Mundt or Beagle, and cannot say that he saw either of them in the saloon that night. At the close of the testimony, the court directed a verdict of not guilty as to the respondent Stiles. The case was submitted to the jury as to the respondent Belton. He was convicted by the jury of the offense charged.

The case is before this court on exceptions before judgment. There are 18 assignments of error. We have examined all of the assignments of error and the entire record. We find no error in the conduct of the trial or the admission of evidence. We find but one error in the charge of the court, and that is raised by the 17th assignment of error.

The court had already charged the jury that, if they found that the assault was not committed by the respondent, they should acquit him. This branch of the charge was even more favorable to the respondent than he could ask. The court further charged the jury as follows:

“If you should find, gentlemen of the jury, from all the testimony submitted, that this defendant was aiding, that he was abetting, or that he was assisting some person in committing the assault upon the complaining witness John Mundt, and that the assault was committed with the intent to rob, the respondent would be guilty of the crime charged in the information, assault with intent to rob. If you are satisfied of that fact beyond a reasonable doubt that he was aiding and abetting, because, gentlemen of the jury, the rule is supported by law, where two men agree to commit an unlawful act, and they enter upon tbe premises of a man for the purpose of committing the unlawful act, robbing him, and be meets with resistance, and be takes human life, tbe man who is on tbe corner watching for him is just as guilty of tbe taking of that life under tbe law as the individual who was tbe direct cause of its taking.”

Tbe counsel for respondent insists that this part of the charge was erroneous under tbe authorities generally, which bold that the common intent must be proven to make one of two wrongdoers liable for all tbe acts of the other, and that tbe case of People v. Foley, 59 Mich. 553 (26 N. W. 699), is a parallel case, and is decisive of tbe question. In this contention we are constrained to bold that counsel for respondent is correct. In this case Mundt was assaulted in a saloon row in which several persons were implicated. Tbe respondent, in whose saloon the affray occurred, and who bad never before seen Mundt, was seen to strike a blow at some one during the fracas. When all was over, Mundt missed bis pocketbook and money. There was no evidence of any prior common purpose upon tbe part of any persons in the saloon who committed tbe assault, nor was there any evidence of tbe actual taking of bis pocketbook from tbe person of Mundt, tbe complaining witness. In tbe Foley Case, Foley and two companions were sitting by tbe depot at Negaunee, eating sardines, when two Swedes, Anderson and Sockrene, were passing by, and by invitation came up and joined them. Suddenly, and while no unfriendly acts were done on either side, Foley and bis companions jumped up with a concerted signal, and attacked both of tbe others with violence, and began to beat them. Sockrene ran away and escaped from the one who attacked him. Two assailed Anderson, beat him severely, threw him down on bis face, and then tore off bis vest, after pulling bis upper garment over bis bead, and, as be said, one of them took out bis pocketbook, with between $4 and $5 in it, while doing so, and so robbed him. Neither he nor Sockrene could identify either of the assailants as those who attacked him personally, and neither of them knew which took the money. It appeared that Foley and his comrades and the Swedes were strangers to each other. The circuit judge, after referring to the undisputed facts of violence, and defining robbery, said to the jury:

“ It is the evidence in the case, and undisputed, that Erick Anderson had upon him a vest in which he says and claims was this money; that the money was in an inside pocket; that over this vest there was a knit jacket; and it is conceded by counsel and by the evidence that the vest was torn off from Erick Anderson by one of the parties, either Connors, Ryan, or the respondent, and it would make no difference, so far as this is concerned, which. Now, it is for you to determine how that vest was taken off from underneath that knitted jacket. It is for you to determine, if it was taken off — and it is conceded it was — how it got off, and for what purpose it was taken off. The respondent and his comrades claim they simply made an assault — an attack — upon these parties. It is admitted they attacked them and beat them; but that it was with no intention to do any other crime than simple assault and battery. Now, if you find the vest was stripped off from Erick Anderson from underneath this knitted jacket which he had over it, it is for you to determine for what purpose that vest was taken off from underneath the knitted jacket of Erick Anderson. In an ordinary assault and battery an undergarment would not get off in that way, and it is for you to determine how it got off, and for what purpose it was taken off.”

Chief Justice Campbell, speaking for this court, said:

“ It appeared from Anderson’s testimony that the attack and stripping were made by two of the three, whom he could not identify, and that, while he was down, and beaten by two, the third urged them not to strike him any more. There was no testimony of any opportunity for a conference, or of any conference in fact, before the attack, beyond the fact that on a sudden word of attack the assault was committed. There was no testimony of any knowledge of the Swedes, or that they had money, or where they kept it. While there was an evident concert of action in the assault, it was no more necessarily or apparently than exists in any gang of bullies, who may or may not be also thieves. There was no proof of subsequent possession of the pocketbook by any of the prisoners, who were themselves mining laborers earning wages. The particular violence of tearing off the vest, while unquestionably within the responsibility of all the assailants, cannot in law be declared to have been within their specific intent, although possibly the jury might have so found as a fact. But when it is said by the court that whoever did it made no difference, and at the same time the jury were told to consider with what particular intent it was done — whether for assault or robbery — they were practically told that men who combine for an assault are liable for any felony committed by one of them, whether participants in the actual felonious design or not, which is not sound law. People v. Knapp, 26 Mich. 112; Nye v. People, 35 Mich. 16.
“It was in this condition of the case especially injurious to say to the jury, in effect, that from the fact that the vest was torn off something more must have been intended than a mere assault. This was, under the circumstances, substantially telling them that there must have been a design to rob, for no other possible alternative appeared. It is going beyond the province of the court to suggest how far any extent of violence indicates an intent to do more than commit violence.”

The infirmity in the case at bar lies in charging the jury that if they found that the respondent was aiding and abetting, or that he was assisting some person in committing the assault upon the complaining witness, John Mundt, and that the assault was committed with the intent to rob, the respondent would be guilty of the crime charged in the information, assault with intent to rob. For aught that appears here, the aiding and abetting may have been simply in the assault. There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen, if occasion should arise for any one to do it. The assaulter may have intended to rob, but the respondent assisting in the assault may not have such intent. The illustration given by the court was an unfortunate one in a case of specific intent. Undoubtedly if two persons go out with a common purpose to rob a man — that being a felony — and the man resists, and is killed by one of the conspirators or robbers, while the other robber is aiding and abetting his comrade by watching in aid of the common purpose or conspiracy, both might be guilty of murder, and this because of the conspiracy to commit a felony. But that doctrine would not apply in a case of assault with intent on the part of the assaulter only to rob, where the common purpose was to commit an assault only — a mere misdemeanor. As Chief Justice Campbell said in the Foley Case:

“ It is going beyond the province of the court to suggest how far any extent of violence indicates an intent to do more than commit violence.”

Because men combine for an assault, it does not follow that all are guilty of a felony committed by one of them. Especially is that true of the class of crimes we are considering, that of an act coupled with a specific intent. The Foley Case has been followed, and has been the law for 24 years, and the doctrine seems to be founded upon earlier decisions of this court.

Eor the error pointed out, the conviction is reversed, and a new trial granted.

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


text:
    PEOPLE v. DOYLE.
    1. Intoxicating Liquors — Criminal Law — Elections —Keeping Saloon Open — Statutes—Primary Elections.
    In a city which has adopted the primary election system and nominates candidates for local offices on a fixed day, it is a violation of 2 Comp. Laws, § 5395, as amended by Act No. 4, extra session 1907, to keep saloons open on such day, even although the municipality has not observed all the formalities of law in adopting the primary system.
    2. Constitutional Law — Trial by Jury — Directing Verdict-Criminal Law.
    An instruction by the oourt to the juryin a criminal case in which the facts were not admitted, “to bring in a verdict of guilty,” infringes the respondent’s right to trial by jury.
    Exceptions before judgment from Bay; Collins, J.
    Submitted February 11, 1910.
    (Docket No. 158.)
    Decided March 19, 1910.
    Hugh Doyle was convicted of keeping his saloon open on an election day.
    Reversed.

      Lewis P. Cowmans, for appellant.

      Charles W. Hitchcock, Prosecuting Attorney, and James L. McCormick, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

Respondent was convicted of keeping his saloon in the city of Bay City open on election day, March 24,1908; that day being commonly called primary election day. At the trial respondent stood mute, and a plea of ‘ ‘ not guilty ” was entered by order of the court. The people offered evidence tending to show that respondent’s saloon was open upon the day in question, and that upon that day a primary election had been held in the city of Bay City for the purpose of nominating candidates for bridge commissioner and justice of the peace. Further evidence was introduced on behalf of the people tending to show that the primary system of making nominations to public office had been adopted by the city of Bay City in 1906, that the people voted upon the question, that the common council, acting as a board of canvassers, canvassed the vote and declared the question carried, and that since said date (1906) all nominations of candidates have been made under the primary system, so called.

It was urged on behalf of respondent that it was not shown that the primary system had been properly or legally adopted, because the people were unable to show that the original petitions of electors for the submission of the question were in fact signed by the persons whose names appeared thereon, or that all those names appeared on the party enrollment book, and for the further reason that the people were unable to show a full compliance with all the statutory requirements relative to the adoption of the system. We are of opinion that these objections are without force. The fact remains, and is not disputed, that the system was adopted (whether with or without all the statute formalities), that nominations were made thereunder in Bay City for two years, and that such nominations were actually being made thereunder upon the day in question. Section 5395, 2 Comp. Laws, provides that all saloons shall be closed on all election days, and section 51, Act No. 4, Ex. Sess. 1907, makes this provision applicable to primary election days.

Respondent predicates error upon the charge. Believing that under the evidence and the law the respondent was guilty as charged in the information, the court said:

“ Having reached these conclusions, gentlemen, I instruct you to bring in a verdict of guilty.”

The verdict shows that the jury thereupon,—

“Without leaving their seats, by the direction of the court, say upon their oath that the respondent Hugh Doyle is guilty of keeping a saloon open on election day.”

The question involved is whether or not the verdict of the jury was coerced. Respondent relies upon the case of People v. North, 153 Mich. 612 (117 N. W. 63), where, by a majority of the court, it was held that the case should be reversed, because the record showed that the verdict rendered was the verdict of the court, and not that of the jury, and that the charge was not intended to impose upon the jury any responsibility for the rendition of the verdict. The language used by the trial court in that case was as follows:

“I think it is my duty, and I instruct you, that you should find a verdict against this respondent of guilty, as charged, without leaving your seats, and the clerk will take the verdict.”

The court then said to counsel:

“ Now, gentlemen, if you want to lodge exceptions before sentence, I will give you the opportunity to do so, that you may go to the Supreme Court to see whether I am right or not.”

The determination of this court in People v. North, supra, was predicated upon the case of People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582), and cases there cited, where an extended consideration of the question will be found. An analysis of all the authorities touching the point indicates that the rule in this State is as follows: In criminal cases, upon a plea of “ not guilty,” where the facts are not conceded, a verdict of guilty, must be rendered by the jury. It is the right of the trial judge to instruct the jury that it is their duty to bring in a verdict of guilty, if in his judgment the evidence in the case and the law applicable thereto warrants such instruction. Having so directed, he may not go further and compel the jury to follow his instructions. If this is done, the verdict is not that of the jury, but becomes that of the court, and the constitutional right to trial by jury is denied. Does the record in the case at bar disclose that the jury exercised, or were by the court expected or permitted to exercise, any responsibility for the verdict? Clearly not.

The conviction must be set aside, and a new trial ordered.

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


text:
    PEOPLE v. CARLSON.
    1. Assault with Intent to Commit Rape —Force as an Element-Elements oe Assault.
    An assault may be committed without actually touching the person, by attempting or offering to do bodily harm to another, with malice or wantonness, under such circumstances as to denote a present ability to carry such intention into effect.
    2. Same — Elements.
    Evidence of an attempt to have carnal knowledge of a child of unlawful years, with the employment of inducements and threats to shoot, although without exhibiting a revolver, but accompanied by physical violence to her brother who was present, sufficiently supports a verdict of guilty as to a respondent charged with assault with intent to commit statutory rape. People v. Dowell, 136 Mich. 306.
    Exceptions before judgment from Houghton; Streeter, J.
    Submitted February 11, 1910.
    (Docket No. 162.)
    Decided March 19, 1910.
    Arthur Carlson was convicted'of an assault with intent to commit the crime of statutory rape.
    Affirmed.

      O’Brien & Le Gendre, for appellant.

      William J. MacDonald, Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was convicted before the circuit court for Houghton county of an assault with intent to commit the crime of rape upon a female child of the age of 10 years.

The case is here upon exceptions before sentence. The crime was charged to have been committed on Monday, July 5, 1909, which was celebrated as the Fourth. Respondent, of the age of 17 years, had been celebrating in Red Jacket that day with other young men, and had been drinking more or less. Between 3 and 4 o’clock in the afternoon, he, with one of his companions, went to the Copper Range depot, and sat down by it. After sitting there a short time, his companion says he went away, leaving Carlson sitting there. The girl in question, and her brother, eight years old, had also been to Red Jacket, and were on their way home to Centennial Pleights, where they lived. They first saw Carlson and a companion near the depot. He stopped the children, and talked to them and gave them 10 cents, telling them to go back and spend it on ice cream and candy. They went back and spent the money, returning within a short time. They claim that both young men were still at the depot. Carlson, leaving the other, started after them, and, catching up, began to talk with them, and walked on with them until they came to the railroad track, when he said that his brother was coming with six ice cream cones, and told them to take the pathway down by the dam and go in by the road, and he would follow the track and meet them there. They went to the place as directed, and met him there below the dam. He offered the girl $4 if she would lie down on the grass. He said it would be all over quick. The girl refused to lie down, and he coaxed and begged her to do so, raising his offer to $8, $10, and $12. He mentioned other girls who had done so for Mm for |4. She continued to refuse, and he then began to ask her the kind of stockings, drawers, and garters she wore. He rolled up his trousers and showed her his green stockings. The little girl said she must be going. Respondent said “No,” that his brother would soon come, and they could have all the ice cream. He then asked them to go to another place where his brother would be, and they went with him through the bullrushes and swamp farther away into the bushes. Here he begged and coaxed her to lie down, and she again refused. He then threatened to shoot her if she did not do so, which greatly frightened her. He asked the little boy to feel the revolver in his pocket. The boy felt on the place indicated, but could not tell what he felt. .Respondent grabbed the boy and dragged him into the bullrushes, saying that he would shoot him if he screamed. The girl then ran away up to the top of the hill, where she heard her brother call to her. She called back and waited for him until he came up. Respondent, after letting the boy go, ran through the bushes towards his home. The children started towards home. They were crying hard when they met a man and his wife, and told what had happened. These people said they would bring them home. On the way the little girl saw respondent, and pointed him out. The man with her started after him, calling to him. He ran away towards Red Jacket. They met the father of the children near his home, and he was told what had occurred. The girl told her mother as soon as she could sufficiently compose herself.

The testimony of the children is corroborated, except as to what occurred when they were alone with respondent. As to that they are not contradicted by any witness. Respondent did not lay hands upon the girl. He did not show her money, and he did not draw a revolver. The defense offered testimony tending to show that he was under the influence of liquor, and also as to his good character. The question of his condition as to intoxication was a disputed question of fact submitted to the jury. The case as presented here in behalf of respondent in effect accepts the facts established on the part of the people as to what was done by respondent, which is claimed to have constituted the offense charged.

The contentions made are:

(1) That no assault was proven, and consequently a verdict of not guilty should have been instructed by the court.

It is urged that the case made by the people showed nothing more than solicitations or threats made by respondent. There are numerous definitions of what constitutes an assault given by courts and text-writers. We cite two, which, taken together, may be said to include all necessary elements:

“An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” 3 Cyc. p. 1020.
“An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.” 2 Bishop on Criminal Law (7th Ed.), § 23.

That an assault may be committed without actually touching the person of the one assaulted, is not disputed, and no authorities are required in support of the proposition. Where, as in this case, an assault is threatened, coupled with an unlawful condition, the question to be decided is whether the acts done are sufficient to be submitted to a jury to find an assault as a question of fact, or to be determined by the court as one of law. A careful examination of the undisputed facts in this case, taking into consideration the tender years of these children, the enticing by respondent, the place of the occurrence, his purpose as expressed by his talk with the girl, his threat to shoot (indicating and claiming to be armed with a revolver) unless she submitted to his demand, his violent seizure of the little boy and dragging him into the bull-rushes with the threat to shoot him if he screamed, all taken together, satisfies us that the question of an assault was one to be submitted to the jury under proper instructions.

It is insisted that this court has held to the contrary in People v. Dowell, 136 Mich. 306, 310 (99 N. W. 23, 24). It is evident that such contention is founded upon the following words there used:

“Actual violence or actual assault is essential to the commission of this crime.”

We deny that the fair inference from this language is as claimed by respondent. The statement must be taken in connection with the context, and the case there considered. It can be construed to mean no more than that an assault was a material element of the offense charged, and must be proved.

In another case relied upon by respondent, and cited in support of his proposition that threats ■ alone do not amount to an assault, this court, in discussing what would, and what would not, amount to an assault, said:

“ The act done must not only be criminal, but it must have proceeded far enough towards a consummation thereof, and this must necessarily be a question for the jury under proper instructions.” People v. Lilley, 43 Mich. 525 (5 N. W. 985).

The foregoing language is approved by us as applicable to the instant case, and we think the case is authority for our conclusion herein. This would seem to be the rule laid down in New York in an early case where a like offense was charged, and we do not find that the court has departed from that decision. Hays v. People, 1 Hill (N. Y.), 351. The question was, in ouropinion, properly submitted to the jury.

(2) Error is assigned upon the refusal of the court to give a certain charge which combined the necessity of being satisfied beyond a reasonable doubt (a) that defendant had committed an assault upon the little girl; and (5) that at the time of such assault his intention was to ravish and carnally know her; and also to charge as requested with reference to the effect of intoxication upon the question of ability to form an intent. We have examined the charge of the court, and find that upon all the questions raised under these assignments of error the court properly instructed the jury upon the law, and we find no error in the charge.

The verdict of the jury in the case is affirmed, and the cause is remanded for judgment.

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


author: Moore, J.

text:
    SMITH v. HERTZ & HOSBACH CO.
    1. Contracts — Trial—Directing Verdict — Work and Labor-Questions oe Fact.
    It is not error prejudicial to defendant, in an action for the contract price of work and labor in repairing an engine, to submit the case as a question of fact to the jury, under testimony on the part of the plaintiff, admitted by that of the defendant, that services had been performed and payment therefor had not been made.
    2. Same — Performance—Skill Required — Right to Compensation.
    One who employs a machinist engaged in the business of reconstructing machinery, to repair imperfect machinery, is entitled to the employment of reasonable skill on the part of the machinist and may rely on his reasonable competency to do the work.

      3. Same — Instructions to Jury — Questions on Law and Faot.
    It is error to charge the jury that, as a matter of law, a part of the machinery which defendant claimed was defectively and unslrillfully repaired had nothing to do with the alleged trouble in operating the engine.
    4. Same — Questions eor Jury.
    The plaintiff and his witness being in disagreement as to the compensation, it was error to charge the jury generally that if they believed the plaintiff’s case he could recover.
    Error to Wayne; Donovan, J.
    Submitted February 14, 1910.
    (Docket No. 141.)
    Decided March 19, 1910.
    Assumpsit by Joseph M. Smith against the Hertz & Hosbach Company, Limited, for services rendered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      May & Dingeman, for appellant.

      George B. Greening, for appellee.
   Moore, J.

Plaintiff is engaged in the business of building and remodeling old factories, reconstructing machinery, and installing engines in the city of Detroit. In July, 1907, he was engaged by the defendant to superintend and install an engine in the defendant’s plant. He claims it was agreed that he should charge $6 a day and $3 a half day. To use plaintiff’s words:

" If I went on the job at all, I would charge him a half day, and if I went twice, I would have to charge him a full day.”

Defendant was to furnish the necessary assistance. Plaintiff claims that soon after the work was commenced it was not progressing as rapidly as it should, and that upon the suggestion of the manager plaintiff procured for defendant one of his assistants to work for defendant, and that it was agreed that plaintiff should pay him and charge it up to defendant. Mr. Hertz, the manager, denied the contract as stated by the plaintiff and claims that plaintiff was employed to superintend the installation of the'engine, and was to put in his entire time; that the defendant should furnish the necessary assistance out of its factory. He further claims that after the plaintiff had worked about 10 days he placed his assistant in charge, and that defendant supposed the assistant was taking the place of plaintiff during his absence. The defendant claims that about the middle of September plaintiff informed defendant the engine was ready for operation; that defendant notified its men to report for work on the next day, Monday; that on that day the engine worked for a short time, when it had to be shut down; that the plaintiff and his assistant attempted to remedy the defect, and again announced the engine as ready for operation the following day; that the same difficulty was experienced on Tuesday; that plaintiff renewed his efforts to get the engine in running order, and reported it ready for Wednesday, with the same result; that on Thursday the same thing occurred. It is further claimed defendant discharged plaintiff, and telephoned to the Fulton Iron & Engine Works, who sent up a man to work on the engine; that on the following Sunday defendant sent for Mr. Alexander Kerr, an engineer connected with the Fulton Iron & Engine Works, and in about an hour Mr. Kerr had discovered the defect, and the engine was put in running order, and has been running ever since.

Defendant paid plaintiff $50 while the work was in progress. After plaintiff was discharged,'he presented a bill of $309.35, less the $50 paid. In this bill plaintiff charged defendant at the rate of $6 a day for his.own time, and at the rate of 60 cents an hour for the time of his assistant. Defendant refused to pay the bill as rendered, claiming it was excessive. Suit was brought in justice’s court. Plaintiff had verdict in that court for $120.65, from which he appealed, and upon a trial before a jury in the Wayne circuit court plaintiff recovered a verdict of $289.35. The defendant brings the case here by writ of error.

Plaintiff testified in part as follows:

“ That he stated to Mr. Hertz: ‘This work is not going along as fast as it should; we ought to get some more men that understand more thoroughly about this work ’— and he says ‘ Do you know of any ? ’ I says: ‘ I have one man working now on the job; I can take him off,’ and he says, ‘ You take him off, and send him up here.’ * * * I says, ‘About this man’s time ! ’ ‘You pay him and put it in with your bill, and I will give you some money.’ H» H»
“Q. How much per hour did you agree to pay the machinist ?
“A. Sixty cents. That was the regular price at that time, but much more today. At that time 60 cents per hour was a machinist’s price.”

The assistant testified in part as follows:

“Q. How much did you get per hour ?
“A. When I first started ?
“Q. On this Hertz & Hosbach job ?
“A. Forty cents.”

Again:

“ I was to get 40 cents an hour; I was getting 40 cents an hour.”

The plaintiff charged defendant for 264 hours of work by his assistant at 60 cents an hour, and the jury found for the plaintiff on the basis of 60 cents an hour.

The testimony offered on the part of the respective parties was as conflicting as it could well be. There are a great many assignments of error. They will not all be discussed.

It is claimed there was no evidence to show the time spent by the plaintiff, except his hooks of account; that the foundation was not laid for their introduction, and that a verdict should have been directed for defendant. The testimony of plaintiff and of his bookkeeper as to the amount due was admitted without objection. There was objection made as to the admission of the books. But it is not at all clear from the record that they were admitted and used as evidence. The evidence introduced on the part of the defendant shows that both plaintiff and his assistant did work for which plaintiff has not been paid. It follows that it would not have been proper to direct a verdict.

It was the claim of the defendant that plaintiff and his assistant, either through carelessness or incompetency, failed to make the engine work; that defendant was put to much expense to make it work. It was the claim of plaintiff that the only trouble with the engine grew out of the use of oil, in which sand had accumulated during the making over of the building. As bearing upon this phase of the case, the court was asked by the defendant to charge as follows:

“ (3) If you believe from the evidence that because of the incompetency or neglect of plaintiff or his help, defendant was obliged to and did pay the Fulton Iron Works $40 to complete the job, you will give the defendant credit for that amount.
* ‘ (4) Plaintiff is not entitled to pay for any time spent by him or his helper in correcting their mistakes, if you find that any were made, because of carelessness or incompetency on their part.”

These requests were refused, and the jury were instructed as follows:

“ Now, gentlemen of the jury, as toa man hiring one man and being mistaken in his skill. The law does not require every man to have the same skill; the law does not require every doctor to be as smart as every other doctor; or every lawyer to be as smart as every other lawyer; or every business man or banker to be equal to every other man — that is not the rule at all. If you pick your doctor, you have to pay him. If you pick your lawyer, you have to pay him. If you pick your banker, you have to do business with him. There is no hard and fast rule of that kind at all. I leave it to you as to whether the man is competent to do the work, or whether it was the fault of the machinery itself. I leave it to you as to whether .he performed what he agreed to perform.”

We think the rule stated by the court was not the correct one as applied to this case. In making a contract of this character the defendant had a right to rely upon the plaintiff being a man at least reasonably competent to do the work which he undertook to do, and that he would be at least reasonably diligent.

Complaint is made of the following portion of the charge:

“Another witness also found trouble in the machinery itself, and that it was not made properly. It had nothing to do with the part plaintiff did. You heard the plaintiff’s side. If you believe it, he made out his case, he and his witnesses. You heard, on the other hand, the defendant’s side, that he complained, turned off one man, and complained that the man was not doing the work right, and he now complains, or did yesterday to the jury, that even the head man himself, the plaintiff, was not an expert. I leave that to you. You are the judges of whether he was competent or not.”

There was a dispute as to what caused the trouble with the engine, and we think the judge ought not to have said to the jury that what the witness testified was not made properly, “had nothing to do with the part the plaintiff did.” Earlier in the opinion we have quoted from the testimony of the plaintiff, and from the testimony of his assistant, as to the compensation to be paid to the assistant. This testimony does not harmonize. In view of the record the judge ought not to have said:

“You heard the plaintiff’s side. If you believe it, he made out his case, he and his witnesses.”

As the jury gave verdict for the highest number of hours it is claimed the assistant worked, at 60 cents an hour, when he swore he was to be paid 40 cents an hour, the danger of such a charge is made apparent. See Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525).

Judgment reversed and new trial ordered.

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