author: McAlvay, J. Per Curiam.

text:
    GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO. v STEVENS.
    1. Fraud — Option to Purchase Land — Specific Performance.
    On a bill to enforce specific performance of a contract to convey land for a right of way for an electric railroad, evidence examined, and held, insufficient to sustain a decree for complainant on the ground that the option for purchase was secured from the landowner by fraud and misrepresenting that complainant had the right to secure the land by condemnation proceedings.

      2. Specific Performance — Option to Purchase Land — Fraud.
    Specific performance of the contract contained in an option to purchase land for right of way for an electric railroad will not be decreed in favor of the company where it appears that the option was procured from defendant by misrepresentation, that she expressed her dissatisfaction with the contract, and the company built its road across her land in the night against her protest.

      ON MOTION TO MODIFY DECREE.
    1. Appeal and Error — Determination of Cause — Eminent Domain — Awarding Damages — Power of Court.
    In view of section 2, article 18, of the Constitution, this court, on dismissing a bill by an electric railroad company for specific performance of the contract to convey contained in an option to purchase land for right of way, has no power to determine defendant’s damages for appropriating the right of way.
    2. Same — Injunction—Jurisdiction.
    This court, being, without original jurisdiction in equity, has no power to enjoin defendant’s interference with the operation of the road pending condemnation proceedings.
    Appeal from Ottawa; Padgham, J.
    Submitted January 9, 1906.
    (Docket No. 45.)
    Decided April 30, 1906.
    Motion to modify decree denied June 4, 1906.
    Bill by the Grand Rapids, Grand Haven & Muskegon Railway Company against Ursula M. Stevens for the specific performance of a land contract. Prom a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Carroll, Kirwin & Hollway (George A. Farr, of counsel), for complainant.

      Fred M. Raymond (Hatch & Wilson, of counsel), for defendant.
   McAlvay, J.

Complainant, a Michigan corporation, filed its bill in the Ottawa circuit court, in chancery, to enforce against defendant the specific performance of the following written-option:

Whereas, the Grand Rapids, Grand Haven & Muskegon Railway Company is about to commence the construction of an electric railway from the city of Grand Rapids, Kent county, Michigan, to the city of Muskegon, Muskegon county, Michigan:
Now, therefore, in consideration of the sum of $1 and other valuable considerations, we hereby agree to grant and convey to the said Grand Rapids, Grand Haven & Muskegon Railway Company, free from all liens and incumbrances, a strip of land 33 feet in width over and across the south half of my lands that abut the town line highway, said strip to parallel and adjoin the above highway, all of the above strip is located in section 35, T. 8 N., range 13 W.; as the same may be designated by said railway company, and we further agree to execute and deliver a proper deed of conveyance thereof upon payment of the sum of $35 and the furnishing of road crossings and a Page fence along the farm front.
“ This option is good for six months from this date.
“In witness whereof, we hereunto set our hands and seals the thirteenth day of September, 1900.
“ Miss Ursula M. Stevens. [Seal.]
“Signed, sealed, and delivered in the presence of
“R. S. Chappell,
“John C. Liggett.
“ State op Michigan, ) County of Ottawa. [
“ On this thirteenth day of September, A. D. 1900, before me the subscriber, a notary public in and for said county, personally came Ursula M. Stevens, known by me to be the party named in and who executed the foregoing option, and acknowledged the execution of the foregoing instrument to be her free act and deed and for the purposes and uses therein expressed.
“John C. Liggett,
“Notary Public, Kent County, Michigan.”

Complainant was constructing or about to construct an •electric three rail railway. It had in its employment one Liggett who was securing the right of way for its road, and also one Chappell who was introducing Liggett and assisting him in such work. Defendant is the owner of 3]- acres of land near the village of Berlin, Ottawa county, upon which she resides with a family consisting of her father, mother, and sister, largely dependent upon her. The family is supported from the proceeds of garden truck raised upon this land by defendant with her sister’s assistance, and by picking and selling berries. Defendant is, from an injury received when a child, a hunchbacked cripple.

Liggett has been engaged in railroad promoting and securing rights of way for 16 years. Chappell is a justice of the peace living in defendant’s neighborhood, and had ■done a little business for her when she purchased the land. These parties came to her house September 13-, 1900, between 1 and 2 o’clock in the afternoon, and remained from two to four hours for the purpose of securing this ■option, Before they left she signed the paper. On March 13, 1901, Mr. Wheeler on behalf of complainant tendered !her a deed for signature and $35. She refused to execute the deed or accept the money. There is no dispute about the tender of the money, which has been kept good. Afterwards defendant forbade complainant’s workmen to come on the land to construct the road, and attempted to prevent them. The road was built across her land in the night-time, against her protest, by a large gang of men. Defendant by her answer claims that the option was obtained from her by fraud, misrepresentation, duress, and undue influence, also that it was not mutually binding upon the parties in that complainant was not authorized and empowered by the statute under which it was organized to enter into such an agreement.

Defendant has appealed from a decree granting tne relief asked for by complainant. The case must be determined upon the facts. The testimony discloses that when Liggett and Chappell, came to defendant, Chappell entered the house first and represented that he was friendly to her, that he was around introducing Liggett. There is a dispute in the testimony as to all that occurred at this interview. The length of time spent by these men at her house is indicative of the fact that much more occurred than is set forth in the brief direct examination of complainant’s representatives. We find from the record that Liggett made statements to defendant which were false and misleading. He threatened condemnation proceedings if she refused the option, and enlarged upon the great expense it would make her. He admits he knew his company had no authority to condemn. This woman was ignorant of business affairs, weak, crippled, and excitable. There is no dispute but that after she signed this paper she stated she was not satisfied, and had not been dealt fairly with. The record shows that this option was procured from her by means used on the part of the representative of complainant which amounted to a fraud upon her. As far as defendant is concerned there is no indication from this record that she states anything but the truth as to this entire transaction. She is supported by her sister and mother as to the part which they observed, and in large part by the men themselves, who both, testified for complainant. The company built its road upon her land without right or authority, against the protest of this defendant. Under the statute when complainant organized, and when this option was secured, it was. only authorized to maintain and own a street railway in and along the streets and highways of any township, upon such terms and conditions as might be agreed upon, by the company and the township board. It was by aa amendment of the legislature of 1905 that such corporations were authorized to use private rights of way, and were given the right of eminent domain. Act No. 133, Pub. Acts 1905. It is not necessary to discuss the question of ultra vires raised by defendant in the case. The above statement relative to the statute is added as bearing upon matters already discussed, and because the record, discloses that complainant and its agent Liggett knew at the time this option was secured that such amendment was necessary.

The decree of the circuit court is reversed, and the bill of complaint dismissed, with costs of both courts to,defendant.

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

ON MOTION TO MODIFY DECREE.

Per Curiam.

This is a motion by complainant to modify the decree to be entered in this case recently heard in this court upon the appeal of defendant, wherein the decree rendered against her in the Ottawa circuit court,, in chancery, was reversed, and the bill of complaint was. dismissed. As the opinion in the case contains a full, statement of the issue and the facts found by this court, a repetition is unnecessary.

We are asked to modify the opinion (1) by determining the defendant’s damages for appropriating the right of way; or (2) by enjoining defendant from interfering with the operation of the railway pending condemnation proceedings. The Constitution of this State (article 18, § 2) provides that in taking private property for public use the necessity and compensation for such taking shall be ascertained by a jury. We have no authority to fix damages in this case. The case of Lane v. Traction Co., 135 Mich. 70, relied upon by complainant, is distinguishable from the case at bar. In that case defendant traction company was lawfully in possession under a deed, but was building trestle work to carry its road, instead of building at grade. The bill was filed praying for an injunction, and also asking for damáges. In the case at bar the only relief asked for is the specific enforcement of a contract to deed right of way. As far as the pleadings show, no possession had been taken or was claimed. It appears from the testimony that without right, at some time before the hearing, possession was wrongfully taken and the road built through the premises.

The facts presented by this motion are no part of the case appealed from. Original jurisdiction in equity is not vested in this court. We have no power or authority to issue the injunction as requested. It will not be presumed that, pending proceedings to condemn, defendant will be advised to interfere with the operation of the railway. If, pending such proceedings, an injunction is deemed necessary, a court of original and competent jurisdiction is the proper forum in which to institute the suit.

The motion is denied, with costs.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    GREAT CAMP KNIGHTS OF THE MODERN MACCABEES v. DEEM. MODERN WOODMEN OF AMERICA v. SAME.
    I. Life-Insurance — Right to Prooeeds — Bill op Interpleader ■ — Evidence—Change of Beneficiary.
    On. a bill of interpleader to determine the right to the proceeds of certain life-insurance policies, testimony as to assured’s statements as to his purpose in substituting his sister in place of his wife as beneficiary is admissible upon the issue of his mental competency, but not for the purpose of proving a gift.
    3. Same — Evidence—Suffioienoy.
    Evidence examined, and held, to show that assured’s purpose was not to make a gift to his sister, but to secure her for money to be advanced for his support and certain loans theretofore made to him by their mother.
    Appeal from Kent; Wolcott, J.
    Submitted January 11, 1906.
    (Docket Nos. 57, 58.)
    Decided April 30, 1906.
    Bills of interpleader by the Great Camp Knights of the Modern Maccabees and the Modern Woodmen of America against Ella E. Deem and Alice J. Phillips to determine the right to the proceeds of certain policies of insurance. Erom a decree for defendant Deem, defendant Phillips appeals.
    Reversed.

      Claude B. Buchanan (Francis A. Stace, of counsel), for appellant.

      Knappen, Kleinhans & Knappen and Ernest L. Bullen, for appellee.
   Blair, J.

Charles H. Phillips became insured in the Maccabees in October, 1898, in the sum of $2,000. His wife, Alice J. Phillips, was named as the beneficiary. On the 16th day of October, 1902, he revoked the designation of his wife as beneficiary and designated his sister, Ella E. Deem, in her stead, and a new certificate was thereupon issued in favor of Mrs. Deem. He also became insured in the Modern Woodmen of America for the sum of $2,000, in favor of his wife, in April, 1895. This certificate was lost and a new one issued in favor of his wife, June 2,1902. On October 16, 1902, he designated his sister, Mrs. Deem, as beneficiary under this policy instead of his wife.

After his death, his widow, Alice J. Phillips, presented a petition to both the Maccabees and the Woodmen, stating that for more than two years previous to his death he had been afflicted with a disease which had the effect of weakening and rendering his mind unsound as well as his body, and that for nine months previous to his death his mind had become greatly enfeebled and unsound, gradually growing worse; that he had become subject to aberrations, and, among other delusions, he had become strongly impressed with the erroneous idea and delusion that he was in danger of suffering for want of the necessaries of life and from poverty; that during the said nine months, his mother and his sisters, Mrs. Deem, Mrs. Johnson, Mrs. Aldrich, and his brother Lewis, who, Mrs. Phillips claims, had been unfriendly to her, had fostered these erroneous ideas and delusions, and she charged that Mrs. Deem, in particular, had fraudulently contrived to procure herself to be substituted as the beneficiary in said certificates, and that substitution was attempted to be made for the purpose of securing the payment of an alleged pre-existing indebtedness of the said Charles H. Phillips, as well as to secure payment of moneys proposed to be lent to him thereafter. The disease which is supposed to have thus affected him was Bright’s disease.

The Maccabees and Woodmen each filed bills of inter-pleader against Mrs. Phillips and Mrs. Deem, and paid the amount of insurance into court, and decrees were made that their bills were well filed, and the defendants' were directed to interplead, which they did. The testimony in the case was taken in open court, and a large number of witnesses were examined, pro and con, and the court made a decree, without filing any opinion, sustaining the change of beneficiaries, and awarding the fund to Mrs. Deem. Mrs. Phillips appealed.

The great bulk of the testimony in this case was directed towards showing the mental condition of Charles H. Phillips and his relations towards his wife during the 20 years of their married life. It would be impossible within the limits of this opinion to discuss the testimony, and no useful purpose would be served thereby. Suffice it to say, that I have arrived at the conclusion that the mind of Mr. Phillips was impaired to some extent, but not to such an extent as to invalidate his acts in changing the beneficiaries in the insurance certificates in question here. Neither, in my opinion, would this court be justified in finding from this record that Mr. Phillips was actuated by any insane delusion concerning his wife. I am satisfied, however, that it was not the intention of Mr. Phillips to make an absolute gift of the certificates to his sister, Mrs. Deem, but that he transferred them to her as a security for pre-existing indebtedness and for moneys and support to be thereafter advanced and furnished. Appellees say in their brief concerning Mr. Phillips’ financial condition at this time:

“ He was then recovering from a serious and expensive illness. He was then out of a job. His doctor bills were unpaid. His finances were so low that he was taking money from his collection of old coins to repair his daughter’s shoes. His home was mortgaged. His salary as alderman of $1 per day depended wholly upon his ability as a campaigner in his then condition to be re-elected in April. He knew that campaign expenses were heavy, and had to. be met to secure an election. His tenement house was rented for $11 per month, out of which he must pay taxes on both properties. He must pay insurance, interest, water tax, and repairs. His lodge dues and life insurance must be paid, and his wife and child must be fed and clothed. He had been seriously inconwenienced and vexed because his lodge had refused to pay his sick benefits, and had finally forced him to compro.mise by discounting his claim.”

Mrs. Deem testified that in February, 1902:

“I said, ‘Charley, I would not allow myself to worry about that; I should borrow some money on my home or on my insurance, and settle up the little bills, if there are any bothering you.’ * * * I made this suggestion because he did not see how he was going to get along without working six months. Of course, for a while they ■could get along, but he said, ‘I can’t meet my bills six months lying idle.’ I made the suggestion to quiet his mind, and show him how he could pull through. I could see it would be pretty hard to get along six months without working, and I was willing to help him, only I wanted security for it. That is all, so long as he had it. If he hadn’t anything to give me, I should have helped him, and so told him. I never knew that these policies could not be used as collateral until here in court. I have often heard of people loaning money on their insurance, and did not know that it applied to any particular kind of insurance. That didn’t mean to assign me the insurance, but to give me an interest in it to pay back the obligation, simply as security. At this time I gave him no money. * # *
‘ ‘ During his sickness in September we had about the same conversation about his insurance that we had before. The only thing that I remember differently was my saying, ‘ Either Lew or I would let you have the money, Charley, if you need it.’ The conversation came up about his speaking about the grocery bill being due, and that he was just about out of money. Then I said, ‘ Charley, you remember what I said about letting you have money on your insurance. I arranged that, and I heard Lew say he would do it too, if you want it.’ * * *
“Charley first spoke about transferring this insurance ' to me on the day he came to our house; I think it was on October 15th. He said he could not get a division of the property. ‘All I can handle or control is my insurance, and,’ he says, ‘ I am going to control it, and I have made up my mind to assign it to you.’ He says, ‘ I don’t want Allie to have it. She has got all I have earned for the last 50 years, all my lifetime, and now the insurance I ■don’t propose she shall have.’ On Friday morning he first mentioned about paying mother out of his insurance, what he owed her. He said, ‘ I have something to say when mother is in the room,’ and when she came in, he said to me, ‘ I want you to see that mother gets her pay out of that insurance, the unsecured notes that she holds against me.’ And I said to him, ‘ Charley, at any time, if you ever need anything that you cannot supply yourself, call on me for it.’ He replied, ‘Well, you have al-. ways provided for me when I have needed it, in that way, but now we will have the insurance. I should not feel so much like a pensioner upon your charity, if I knew I could not pay it back, and if there is anything left, you have it.’ He said, ‘ Maybe I will use it all, but maybe I will not use any of it.’ * * *
“I remember of that morning’s conversation when he first came in. He didn’t say who he was going to assign the policies to; but I think before dinner he' said he was going to transfer them to me. I was surprised, because he had formerly transferred them to mother. I never asked him to assign them to me. Never thought of such a thing. Never thought of his assigning them to any one until he came there, and left his home, then I naturally supposed he would assign them to mother, and I did not know why he should assign them to me instead of to mother. * * *
“He said to mother, in my presence, that he did not think it necessary to tell the insurance agents his domestic troubles, and he had told them he wanted to make a loan, and that was a sufficient excuse, and did not go into details; did not think it was necessary. Up to this time there had been no talk between him and me about being made to secure a loan. I have told you all about the loan, the two times I spoke to him about loaning him money if he needed it, and he could secure me on his insurance. That is the only time that his insurance in connection with my name was ever mentioned in the world. * * *
“ On Friday morning he told me he wished to say something to me when ma was present, and when mother came in he said, ‘Now you are both here, I want to say to you, Ella, that if I don’t live to be.a burden on you, or use up all the money you might get from this insurance, I want you to see that my mother is paid the unsecured notes that she holds against me.’ I said, ‘Charley, you ought to know that if I had any money coming from you, and you owe mother, that I should pay it.’ He said, ‘ Well, I simply want you to speak about it, so you will know what I want. ’ I knew of the notes, knew when he borrowed the money. The notes were given for borrowed money to be used in his business. * * *
“Q. Did you take any steps to adjust this matter with Mrs. Phillips, after his burial ?
“Mr. Stace: That is objected to as privileged.
“A. I did.
“Q. When?
“Mr. Stace: I object to all that tends to show an attempted adjustment, as being incompetent and privileged.
“Mr. Kleinhans: Well, that is probably true ordinarily. If your honor please, I state that my object in showing what she did, I think is competent in this case, as bearing upon the question of undue influence.
‘ ‘ Mr. Stace: It is not competent in any case.
“A. On the day after the funeral, October 29th, I went to Mr. Kleinhans’ office and met Mr. Bullen there, and I told them that I heard Mrs. Phillips was going to make trouble, and I did not want it, and I had this insurance assigned to me without any solicitation whatever on my part. I had nothing whatever to do with it. It was simply, as it were, thrust upon me, and that under the circumstances,.rather than have a lawsuit, rather than to drag my poor old mother into court, and the fact of my never soliciting it, and together with all the other circumstances, I would rather give Mrs. Phillips $2,000, which I knew would pay all indebtedness, and leave her a thousand dollars besides. I would rather also put $1,200 in trust for Blanche, the court to appoint a trustee, for Blanche’s care and education, especially her education, and the remaining $8001 wanted to use to pay my mother the notes my brother requested I should pay, and reimburse myself what I had been out for his last sickness, and the little money I gave him; which was a trifle. I gave Mr. Bullen and Mr. Kleinhans instructions to communicate that proposition to the counsel of Mrs. Phillips, and I waited in Mr. Kleinhans’' office while they went over to Mr. Chandler. When they came back they reported, the way I understood it, that Mr. Chandler thought it was a fair proposition. I understood it had been communicated to him. I never received any reply to that proposition. I left it standing there until the day I left for California, which was December 3d. Then I told my brother-in-law to telephone Mr. Kleinhans that that offer was off.
“ Q. If this money is decreed to you, Mrs. Deem, what is your intention to do with it ?
Mr. Stace: Objected to as incompetent.
“A. I intend to do just as I said in my proposition at that time. I intend to 'reimburse myself and pay the debts, these notes and a few other things my brother told me he owed, although he did not require I should pay it, pay the costs of this litigation, and what is remaining I intend to spend for Blanche’s benefit, if I am allowed to do it. I never had any intention or thought of profiting, by it personally. I have always been willing, in my first proposition, I have shown that. Blanche has a marked talent for both music and elocution, and she should be educated in one or the other of them, and my intention is to do that.”

Mrs. Phillips, the mother of Charles H., testified:

“I was present when Charles talked about this transfer of the policy to Mrs. Deem, and I think I can give what he said. He said he was going to transfer the insurance to you, Ella — Mrs. Deem. There was no more said. I recall distinctly what he said when he cálled both of us in. He says, £ I want you, Ella, to promise to see that mother is paid what I owe her, and the rest, do as you please with it.’”

Mr. Aldrich, a brother-in-law of Phillips, testified:

“ Charley told me the reasons that he gave to the agents of the insurance companies for changing the policies. It was on the same Thursday‘ he changed them. It was when we were driving. He said he. told them it was for the purpose of making a loan. He stated that he did not care to go into details with them. I suppose he said so, as he did not want to tell them of the family troubles.
££ Mr. Stace: I move to strike out what he supposes.
A. Well, I know that that was the case, then.
££ Q. Did he say so, or is that your inference ?
££ A. Why, he said he did not want to go into family affairs.”

Dr. Bigham testified:

“Yes, Charley used to call at my office. I think he was at my office between the time when he got out on his September sickness, which was early in October, to the time when he was taken down on the 20th of October for his last sickness. I had some talk with him. As to his calling at my office about a week before his last illness, I can’t remember dates as regards that. He was there several times. I remember of his speaking at that time about his-sister, and about getting money for himself and his family. He told me that his sister said she would furnish money to care for him, but she would not furnish it for .himself and family. I presume that it was Mrs. Deem that he meant. I think that the words he used were, that he had spoken to Mrs. Deem, and that she said to him, ‘ Charley, if you want money for your family, you will have to secure me, as I will never furnish money to support your family ;’ that she'would do anything to take care of him, but not for his wife. I don’t recollect anything about the assignment of the policies, whether at this time about which I am testifying or not, it had been made or not.”.

Mr. Saunders, record keeper of the Maccabee Tent, testified :

“ He called on me at my office on October 15th (I did my business in reference to the Tent there); it was between 2 or 3 p. m. I noticed a cloth around his neck. I always thought he looked sick. He did not appear any different then that I could see otherwise. He drew his certificate from his pocket, and said he wanted to transfer his insurance to his sister, Mrs. Deem. I told him he could transfer all or a part of it. He said he wanted to transfer all, to secure a loan. He asked how long before he could get the new one. I told him about a week, and he told me when it came to send it to Mrs. Deem.”

Mr. Worley, clerk of the Woodmen Camp, testified:

“Mr. Phillips called on me October 16, 1902, in the forenoon, at the office of Kent Camp Modern Woodmen, 41 Lyon street. He came in and said, ‘Hello, Worley.’ I shook hands with him through the window in the grating between the outer vestibule and the inside. He said he had a matter he would like to speak to me about privately. I asked him to have a seat inside. He then asked me if he could transfer his policy as collateral to a loan. I told him he could not. I told him what our by-laws provided for beneficiaries. I think I read the by-law to him. He said, ‘Very well, that would do me. I can borrow what money I want of my sister. I believe I will transfer it to my sister.’ Previous to saying this, after reading the by-law, he asked, ‘ Can’t I assign it at all ?’ or something like that. I told him he could assign it to nobody only a blood relative, or somebody that was dependent on him. He said all right, he would assign it to his sister. He said, ' I can borrow what money I want from my sister.’ He wanted to assign it as security for a loan. He took the policy out of his pocket, and I filled out the blank on the back of it, having asked him his sister’s full name, handed it to him, and he signed it at my desk, paid me the fee of 50 cents, and went away.” /

It is said in the brief for appellees:

“To this extent, the transaction seems to have the appearance of security, but it went further than this. The arrangement was that if there was anything left, Mrs. Deem was to do as she pleased with it. As his mother states, and as stated by Mrs. Deem, ‘ If there is anything left, you have it; if there is any more, use it as you see fit.’”

While the testimony referred to was admissible upon the issue of mental competency, it was not admissible for the purpose of proving a gift. Great Camp K. O. T. M. v. Savage, 135 Mich. 459. The change of beneficiaries in the certificates was either intended as an absolute gift, without legal restraint upon the disposition of the proceeds as claimed by appellee, or it was intended to be as a security simply, as indicated by Phillips’ statements made to the record keepers at the very time of making the change. I think the fair inference is, from all of the competent testimony, that Mr. Phillips, acting upon the advice which his sister had given him, and the offers which she had made on several occasions, and to which he referred, in his talk with Dr. Bigham about the time of the transfer, intended to secure payment of his existing indebtedness and such indebtedness as should arise in the future, and that he adopted the method used as the only means which he understood was open to him for that purpose, and which he supposed amounted, in effect, to an assignment of the original certificates as security for such indebtedness. That this was Mrs. Deem’s understanding of the "transaction, I think is shown by her offer of settlement, and her testimony that in case of decree in her favor, she still intended to carry out that offer. If Mrs. Deem understood that the principal object of her brother in ■changing beneficiaries was to prevent his wife getting a ■dollar of the insurance, it is difficult to understand her conduct in this respect.

A decree will be entered providing for the payment out •of the fund, of any moneys loaned to or advanced for Mr. Charles H. Phillips by Mrs. Deem, including funeral expenses and expenses of his last sickness; of the notes to his mother; of the taxable costs of the parties in this litigation in both courts, including solicitor’s fees to the appellant and appellee of $150 each. The remainder of the fund will be turned over to appellant.

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


author: Ostrander, J.

text:
    RANSON v. CITY OF SAULT STE. MARIE.
    1. Highways — Bridges — Powers of Municipalities — Public Hse.
    The general power over streets, their grades and maintenance, and over bridges and the manner in which they shall be constructed, which is usually possessed by cities, must be considered with reference to, and is limited by, the purposes and uses of public ways.

      % Eminent Domain — Taking Property — What Constitutes.
    The construction of approaches to a bridge above the level of the street, so that access by vehicles to abutting property is entirely cut off, and pedestrians must descend by a flight of steps, constitutes a taking of the property of the owner.

      3. Municipal Corporations — Streets—Bridges—Liability for Torts.
    Where a city builds a bridge across a canal and approaches thereto at a height greatly in excess of that required for public travel, in accordance with a contract it has made with the owner of the canal, its acts in so doing are not referable to any charter power over its streets and bridges, and it is liable in damages to the owner of abutting property injured thereby.
    Error to Chippewa; Steere, J.
    Submitted January 11, 1906.
    (Docket No. 52.)
    Decided April 30, 1906.
    Case by Anna M. Ranson against the city of Sault Ste. Marie for damages caused by the raising of the street grade in front of plaintiff’s property. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Portage avenue is, or was, one of the principal streets in defendant city. Crossing the street is a canal, known as the “Water-Power Canal,” constructed and controlled, by a private corporation, used to hold and carry water for power and other purposes for the profit of said private corporation, which was organized under the provisions of Act No. 39, Pub. Acts 1883. The relations between the defendant and said private corporation are stated, and in some part defined, in the preamble and body'of an ordinance known as “Ordinance No. 82 of the City of Sault Ste. Marie,” also as the “Douglas Ordinance,” the provisions of which, essential to an understanding of the questions presented to the court, are here set out:
    “An ordinance granting to Edward V. Douglas, of Philadelphia, Pennsylvania, and his assigns, permission to deepen, enlarge, improve, and change the course of and make a diversion from the course of a certain existing-watercourse in the city of Sault Ste. Marie, heretofore established for public drainage and sewerage purposes, and. to do other acts in connection therewith.

      “ Whereas, there is a certain existing watercourse crossing certain streets and alleys of the city of Sault Ste. Marie, commonly known as the water-power canal, which has been in existence for seven years and upwards and which has been previously established for public drainage and sewerage purposes; and
    “ Whereas, the said watercourse is deemed by the common council of the city of Sault Ste. Marie to be to all intents and purposes an unnavigable natural stream subject'to regulation and control as such under the police powers of the city of Sault Ste. Marie; and

      “ Whereas, the city of Sault Ste. Marie has heretofore established said existing watercourse for the purpose of public drainage and sewerage and has accepted and taken upon itself all the burden incident to providing the means of accommodating public travel across said watercourse; and
    “ Whereas, it is the opinion of the common council of said city that it is for the public interest and/ it is a necessary sanitary measure that said existing watercourse be deepened, enlarged and improved and a diversion made from its present course so as to provide a more direct outlet, and that the rights of the city of Sault Ste. Marie to use the same for public drainage and sewerage purposes be confirmed; and
    “ Whereas, the Lake Superior Power Company, a corporation created and existing under and by virtue of the laws of the Province of Ontario, in the Dominion of Canada, is the owner, except at street crossings, of the land through which said watercourse runs, and also the land through which it is proposed the diversion from said watercourse shall run; and
    “ Whereas, Edward V. Douglas, of Philadelphia, Pennsylvania, by assignment from the said Lake Superior Power Company, has full right to enter upon and occupy the said lands, for the purpose of deepening, enlarging, improving, diverting and changing the course of said watercourse; and
    ‘ ‘ Whereas, the said Edward V. Douglas purposes that he or his assigns shall secure full title to the said lands, and shall deepen, enlarge, improve, divert and change the course of said watercourse and use the same for the development of water power to the extent of at least forty thousand (40,000) hydraulic horse power and other purposes not inconsistent with the rights of the city of Sault Ste. Marie; and
    “ Whereas, the said Edward V. Douglas has filed with the recorder of the city of Sault Ste. Marie for the approval of the common council of said city, a map showing the lands proposed to be devoted to said improvement and the approximate boundaries and course and direction of said improved watercourse and where it will cross the several streets and alleys of said city of Sault Ste. Marie; and
    “ Whereas, the said Edward V. Douglas seeks from said city of Sault Ste. Marie, for himself and his assigns, the perpetual and continuing right to be held appurtenant to and not alienable from the ownership of the lands herein referred to and designated on said map, to enter upon and occupy for the purposes of locating, constructing and maintaining said watercourse as existing and proposed, such portions of the public streets and alleys of said city as may be necessary for the purpose expressed; and
    ‘ ‘ Whereas, certain other privileges are desired by said Edward V. Douglas deemed necessary to carry out the project referred to:
    “ Therefore the city of Sault Ste. Marie ordains:
    “Section 1. To Edward V. Douglas, of Philadelphia, Pennsylvania, hereinafter referred to as ‘grantee,’ is granted the right and privilege of deepening, widening and improving the watercourse in the city of Sault Ste. Marie, commonly known as the water-power canal, at its intersections with the public streets and alleys of the city of Sault Ste. Marie, and to make a deflection from the same at a point east of Kimball street in said city so that it shall have a more direct outlet to the St. Mary’s river, and to enter upon and occupy such portions of the public streets and alleys of said city as may be crossed by said watercourse as it now exists and as it shall be deflected and as such crossing shall be represented and set forth on a certain map on file with the recorder of the city of Sault Ste. Marie and heretofore referred to as filed by said grantee, which said map is hereby approved by the common council of the city of Sault Ste. Marie; for the purpose of locating, constructing and operating said watercourse for the purposes of developing said water power and securing beneficial floatage and navigation privileges; subject, however, to such-limitations and restrictions as are hereinafter expressed. * * *
    ‘ ‘ Sec. 8. The said grantee and his assigns shall construct a canal producing at least forty thousand (40,000) hydraulic horse power, and shall within three years after the passage of this ordinance and forever thereafter provide for that portion of the city .of Sault Ste. Marie lying south of said watercourse as proposed to be improved and changed, such access to said watercourse as may be necessary to ■accommodate the needs of public sewerage and drainage of said portion of said city, through screened discharge pipes to be permanently set into and maintained by said .grantee or his assigns, in the south embankment of said watercourse at its intersection with all streets and alleys, or in lieu thereof, if deemed insufficient by the common council for adequate sewerage and drainage, through a trunk sewer to be laid by said grantee or his assigns and to be renewed from time to time as necessity may require, and maintained at a size sufficient to adequately accommodate said sewerage and drainage along the south side of said watercourse, which said trunk sewer shall have an outlet or outlets into said watercourse at such places and also into St. Mary’s river as a terminal outlet as said grantee shall provide.
    “ Seo. 9. In consideration of the fact that the improvement of said watercourse will provide the city of Sault Ste. Marie with permanent sewerage and drainage facilities that will obviate the necessity of the construction and maintenance by said city of a trunk sewer that would involve great expense, the city of Sault Ste. Marie agrees as a condition precedent to its entering upon and enjoying the additional sewerage and drainage facilities afforded by the improvement of said water way, as follows:
    “ First. That upon completion of said construction and within ninety days after written notice thereof given by said grantee or his assigns, of the completion thereof, it will at its own cost and expense remove the bridges maintained across said watercourse during said period of construction, except bridges at Maple street and Hay Lake Road, which shall be removed by grantee.
    “ Second. That all bridges thereafter constructed across said watercourse by said city shall be one-span bridges from crest to crest of the embankment of said watercourse, not exceeding 260 feet, and shall be of a height .above said watercourse that will have a clearance above the Lake Superior level of five feet; the Lake Superior level herein referred to being at an elevation of (601.5) six hundred and one and five-tenths feet above New York •datum.

      “ Third. That for a period of twenty years after the completion of the improvements of said watercourse as herein proposed, the city of Sault Ste. Marie shall pay to said grantee or his assigns, the full sum of ten thousand dollars per annum, payable on or before the first day of June of each year after the improvements proposed shall have been completed, six thousand dollars of which shall not be payable for any year in which, under the operation of existing laws relating to general taxation, the assessed valuation of the lands occupied by said watercourse and, appurtenances thereto and the improvements thereon does not exceed the sum of five hundred thousand dollars: Provided, however, That all obligations for said six thousand dollars per annum shall cease in case there.shall be passed and approved at the next or any subsequent session of the legislature of the State of Michigan an act putting the company which shall own such properties on a basis of paying specific, in lieu of general, taxes, to be fixed at the sum of one per cent, per annum of the capital stock of said company, which shall not be less than five hundred thousand ($500,000) dollars.
    “Sec. 10. The Michigan Lake Superior Power Company as assignee of Edward Y. Douglas, grantee hereunder, its successors and assigns, shall furnish all material, and labor, and complete ready for use by the city of Sault Ste. Marie in the construction of highway bridges across the said canal, suitable masonry shore abutments for the. support of said bridges and their appurtenances at the. following street crossings, viz.: On or before August 1, 1901, at the crossing of said canal with Spruce avenue and Johnstone street; on or before October 1, 1901, at the crossing of Fort street and Bingham avenue; on or before July 1, 1902, at the crossing of such other streets as the common council may by resolution designate on or before. September 1,1901.
    “ Said abutments shall be of such dimensions as may be necessary to properly and safely carry such highway bridge or bridges as may be placed thereon, either in the first instance or at any subsequent time of the width of the bridges at present constructed and under construction: Provided, however, If the common council shall hereafter determine to construct bridges of greater width than those at present constructed or planned at Ashmun street, or Fort street, or Portage avenue, the said Michigan Lake Superior Power Company, its successors or assigns, shall provide for such highway bridge or bridges by such addition to its abutment construction as may be necessary and adequate support for such widened highway bridges; said bridges to be limited to a roadway width of not to exceed 34 feet and all abutments shall be located with face on embankment crest alignment and at right angles with the center line of the bridge and they shall be on such foundations and of such a character and stability as to properly and safely carry such highway bridge or bridges with all the public travel incident thereto including street cars and street railways and the said Michigan Lake Superior Power Company, its successors and assigns shall, after the completion of said abutments and at all times thereafter maintain the same and each and every thereof, including the abutments previously constructed at the crossings of Ashmun street and Portage avenue in said city and including also any addition to any abutments, in safe and proper condition, and shall guarantee the suitability, stability and sufficiency of each and all and every part of said abutments to safely carry such bridge or bridges with all the public travel incident thereto, including street railways; and in case said abutments or any thereof or any part thereof, shall prove unsuitable or insufficient or unstable or defective, or give away or in any way become improper or unsuitable or insufficient to carry any such bridge or bridges, with all the public travel incident thereto, including street railways, the said company, its successors or assigns shall replace or repair the same, and' if said city shall suffer damages to any bridge or bridges or property, or through valid claims made against it for damages, chargeable in any way to the failure or insufficiency of said abutments or any thereof, said company, its successors or assigns shall pay all such damages, and all costs and charges accruing by reason thereof, whether to a bridge or bridges, or other property or through claims made against the said city, and shall hold said city harmless therefrom: Provided, however, That said city, through its common council, upon completion of any bridge or bridges shall provide and continuously maintain by ordinance, regulations for the use of said bridges by the public; prohibiting fast and improper driving thereon and limiting the weight of loads on said bridges to a maximum not to exceed the tested strength of said bridges.
    ‘ ‘ In case the said company, its successors or assigns, shall fail to fully complete and operate said watercourse within four years from August 1, 1898, it shall replace all bridges, foot bridges, sidewalks and streets crossing the right of way of said watercourse that may have been displaced or removed by said company, its successors or assigns, and leave the same in as good condition as before said date.
    ’ “ This ordinance is hereby declared to be in the nature of a contract and is declared to apply to all abutm’ents for bridge purposes erected along said' canal whether constructed or in course of construction or to be constructed, including the abutments at the intersection of said canal and Ashmun street, Portage avenue, Maple street, Bingham avenue and Johnstone street and all other streets and avenues crossing said canal that may be designated by the common council on or before September 1, 1901, and shall be of no force or effect if said company, its successors or assigns shall fail or neglect to file with the recorder of the city of Sault Ste. Marie their acceptance thereof within thirty days from the approval of this ordinance.”
    The building of this canal made it necessary to construct a bridge on Portage avenue, and one was built, not on the grade of the street, but above the grade, and, in consequence, the building of approaches thereto became necessary. At this point the canal is 200 feet wide and 20 feet deep. Plaintiff owns premises adjacent to the canal, fronting upon Portage avenue. The approach to the bridge, which is retained by walls built in the street, so occupies the street in front of plaintiff’s premises that access thereto, by driving, is entirely cut off, and those traveling on foot must descend from the street by a flight of steps. Snow and water are impounded upon the premises. The charter of defendant provides for the appropriation of private property foi public uses, for various purposes, among them “for the construction of bridges,” and a method of acquiring such property, by condemnation and for compensation, is adopted. No such proceedings were had or were attempted.
    Counsel for appellant state the contention in the following language:

      “Plaintiff sues the city as for a continuing trespass and seeks to recover damages to her occupancy occasioned by the construction and maintenance of the embankment approach to this bridge from the time of its construction up to the date of the commencement of this suit.
    “ Defendant’s contention was as follows: In the specific act for which it is sued, viz., the construction of the bridge approach, it was performing a public duty; duly'determined upon and ordered under specific and adequate legislative powers conferred upon it by its charter; and, under the law, it cannot be held liable for the consequential damages suffered by plaintiff in consequence thereof.
    “ The assignments of error relied upon are due to the fact that the trial judge did not accept the applicability of the principle of law above set forth, but took the following position:
    “1. He charged in effect that, under the undisputed testimony, the act of the city in constructing the approach was not in pursuance of its public duty, but was to meet the needs of the Water-Power Company, a private corporation, and to fulfill the obligations which the city had assumed in the Douglas ordinance. * * *
    “ 2. He also apparently took the position in his charge and rulings that the construction of the approach was but one act of the whole tort involved in the construction of the canal and building of the bridge at a higher grade than the previous street grade, and that this tort, having been committed by the joint connivance of the municipality and the water-power company, the former was liable as joint tort-feasor and could be sued alone; and, inasmuch as suit had been brought only for the damages occasioned by the bridge approach, he directed the jury to not include the damages occasioned by the construction of the canal.”
    There was a verdict and judgment for the plaintiff.

      John W. Shine {Oren, Webster & Carleton, of counsel), for appellant

      Warner & Sullivan, for appellee.
   Ostrander, J.

{after stating the facts). The construction of the bridge and the approach thereto was made^ necessary by the excavation for the canal and the maintenance thereof. The argument for appellant, shortly stated, is that whatever may have preceded the building of the bridge in question and whatever lawful or unlawful action, public or private, created the condition which made the bridge and the approach thereto necessary, inquiry in the plaintiff’s case should begin with the condition which was, after the construction of the canal, found to exist, and be confined to the action of the authorities in restoring the street to. public travel. To use the language of the brief:

“ One set of municipal officers might wrongfully acquiesce in or license the destruction of a portion of a public street, but could it be said that the act of the succeeding set of officers in devising and carrying out plans for restoring the street would be any less a lawful exercise of municipal authority on account of the original tort ? ”

The general power over streets, their grades and maintenance, and over bridges and the manner in which they shall be constructed, which is usually possessed by cities and is possessed by defendant city, must be considered with reference to, and is limited by, the purposes and uses of public ways. Plaintiff’s damage flows from the construction of an embankment by the city which has the effect to .destroy, to some extent,- her property. Within repeated decisions of this court, there has been a “ taking ” of plaintiff’s property, and, if we could consider the purpose of the taking a “public purpose,” plaintiff was entitled, by the terms of defendant’s charter, to compensation. The city has taken, without proceedings to determine either necessity or resulting damage. So that whether we regard the action of the defendant1 in erecting the bridge as within or outside of the charter powers, .there has been a tortious taking of property. Whether the action of the city can be sustained as an exercise of charter powers is, however, important, as affecting the measure of the plaintiff’s recovery. If there was mere neglect to condemn and to compensate, then the judgment is wrong. Harper v. City of Detroit, 110 Mich. 427; Keyser v. Railway Co., 142 Mich. 143. We are of opinion that the defendant, in causing the bridge to be erected, was not, and did not, in fact, suppose that it was proceeding in the exercise of any charter power of the city over its streets or to erect bridges. See Dean v. Railroad Co., 137 Mich. 459. The bridge was erected, and the necessity for it created, because of an ordinance, in form a contract between the city and private parties. The argument made for appellant, that because the bridge was not erected at the height prescribed in the ordinance, it was therefore not built because of the ordinance and the conditions created by proceedings of private parties thereunder, is not satisfying. The record discloses that for the purposes of a way only, the bridge might have been constructed at, or substantially at, the grade of the street. In principle, the case is ruled by Phelps v. City of Detroit, 120 Mich. 447, as to the right and the measure of recovery.

The judgment is affirmed.

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


text:
    MORRIS v. CITY OF SAULT STE. MARIE.
    Municipal Corporations.
    The judgment in this case is affirmed on the authority of Ranson v. City of Sault Ste. Marie, ante, 661, involving the same facts.
    Error to Chippewa; Steere, J.
    Submitted January 11, 1906.
    (Docket No. 53.)
    Decided April 30, 1906.
    Case by Aggie Morris against the city of Sault Ste. Marie for damages caused by the raising of the street grade in front of plaintiff’s property. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      George B. Holden (Oren, Webster & Oarleton, of counsel), for appellant.

      Warner & Sullivan, for appellee.
   Ostrander, J.

In this case the judgment is affirmed, upon the authority of Ranson v. City of Sault Ste. Marie, ante, 661, in which tie same questions are presented.

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


text:
    ADAMS v. FISHER.
    1. Deeds — Construction—Statutory Form — Limitation.
    A proviso in a statutory form quitclaim deed, inserted after the description of the property granted, that after the death of the grantor and grantee the property shall be divided between the two sons of the parties, is not an habendum clause but a part of and limitation of the grant, hence the rule of construction of common law deeds, that an habendum repugnant or contrary to the granting clause is void, has no application.
    2. Same — Estate Granted.
    A statutory form quitclaim deed from husband to wife, providing that after the death of the grantor and grantee the property shall be divided equally between the two sons of the parties, conveys to the wife only a life estate.
    3. Same — Construction—Statutory Deeds — Rules Applicable.
    The rule of construction that an habendum repugnant to the grant is void does not apply to deeds of statutory form.
    Appeal from Oakland; Smith J.
    Submitted January 12, 1906.
    (Docket No. 63.)
    Decided April 30, 1906.
    Bill by Olive Adams against Ira Fisher and others for the construction of a quitclaim deed. From a decree for complainant, defendant Fisher appeals.
    Affirmed.

      Davis & Bromley, for complainant.

      Perry & Stockwell (JE. H. Sellers, of counsel), for appellant.
   Blair, J.

This appeal involves the construction of the following statutory form deed:

“ This indenture witnesseth, that William Fisher, of the township of Avon, in the county of Oakland and State of Michigan, for the sum of $1 (one dollar), quitclaims to Laura C. Fisher, his wife, of the township of Avon, in the county of Oakland and State of Michigan, the following described real estate, to wit: All his right, title, and interest of, to, and in the northwest quarter of section 23, town 3 north, range 11 east, township* of Avon, county of Oakland, State of Michigan, containing about 141 acres of land, be the same more or less.,
“Provided, however, that after the death of the grantor and grantee, the said premises are to be divided between Edward Fisher and Ira Fisher, sons of the parties to this deed in equal shares, as to the value thereof.
“ Dated this 13 th day of May in the year one thousand eight hundred and eighty-nine.
“William Fisher. [L. S.]”

The appellant contends that this deed conveyed to Laura Fisher the fee simple absolute. The complainant argues that the deed conveys to Laura Fisher a life estate, with remainder in fee to Ira and Edward Fisher. A person unskilled in the law would probably have no difficulty in determining that the deed actually means what complainant alleges to be its legal meaning and effect. But the appellant urges that by reason of a technical rule established to aid courts in determining the intention of the grantor, the legal meaning of the deed is different from and subversive of the real meaning. The rule invoked by counsel for appellant is stated in their briefs, as follows :

“It is well settled by numerous cases, that when the habendum is repugnant and contrary to the granting clause, it is void. It can only affect the grant when it can be construed as consistent with the premises. It cannot divest the grantee of the legal estate already granted him in the premises, nor can the habendum frustrate a grant complete before, or abridge or lessen the estate granted.” Smith v. Smith, 71 Mich. 640.

There is no room for the application of this rule to the facts of this case, for the reasons that:

1. There is no habendum clause repugnant to the granting clause. The clause, “Provided, however,” etc., is not an habendum clause but a part of and limitation of the grant.

2. The intention of the deed is plain and must be given effect. Evans v. Dunlap (Ind. App.), 75 N. E. 297; Doren v. Gillum, 136 Ind. 134; S. E. & H. L. Shepherd Co. v. Shibles, 100 Me. 314; Collinsville Granite Co. v. Phillips, 123 Ga. 830.

3. The technical rule relied upon does not apply in the construction of statutory deeds. Welch v. Welch, 183 Ill. 237.

Section 9016, 3 Comp. Laws, does not render the above decision inapplicable. That section reads as follows:

“It shall not be necessary to use the words ‘heirs and assigns of the grantee ’ to create in the grantee an estate of inheritance; and if it be the intention of the grantor to convey any lesser estate, it shall be so expressed in the deed.”

The language used in Welch v. Welch, quoting from a prior decision, is applicable to sections 9015 and 9016 of our Compiled Laws:

“ The statute to which reference is made excepts, by its terms, cases in which a less estate than a fee is limited, by express words, and since it does not enjoin that this limitation shall only appear in the granting clause, it is, obviously, unimportant to the present question. The .granting clause in this deed (which is the same in the deed here in question) merely describes the property conveyed, and does not pretend to define the nature or character of the estate granted. If it were followed by no language assuming to supply what is thus omitted, it would result, by legal implication, under the statute relating to conveyances, that the estate conveyed was a fee. But the habendum follows, for the express purpose of describing what estate in the property is conveyed. It does not contradict the language of the granting clause, but simply supplies what is omitted therefrom, and removes all necessity for resorting to implication to ascertain the intention of the parties.”

The learned judge before whom this case was heard ■placed a correct construction upon the deed in question, and his decree is affirmed, with costs of this court to complainant.

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


author: Montgomery, J.

text:
    CURTISS v. CURTISS.
    1. Appeal and Error — Instructions—Harmless Error.
    Complaint of an instruction that authorized the jury to find for plaintiff notwithstanding they found that a certain mortgage was fraudulent, will not be considered where the jury, found specially that the mortgage was not fraudulent.
    2. Same — Determination op Cause — Former Decision as Law op Case.
    The decision of the court on a question raised on a former review of the same case is the law of the case and cannot be reconsidered. ^
    Error to Kent; Perkins, J.
    Submitted January 12, 1906.
    (Docket No. 64.)
    Decided April 30, 1906.
    Case by James A. Curtiss, as surviving partner of himself and George EL Outhouse, deceased, composing the firm of J. A. Curtiss & Company, against George S. Curtiss, for the wrongful conversion of a cause of action. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Dunham & Malcolm, for appellant.

      McKnight & McAllister, for appellee.
   Montgomery, J.

This case has once been before the court, and is reported in 134 Mich., at page 220, to which report a reference is made for a fuller statement of facts. Briefly stated, the claim which plaintiff sets forth in his declaration is that having a cause of action against Luther T. Wilcox for damages for conversion of a stock of goods upon which plaintiff and his business partner (since deceased) held a chattel mortgage to secure the payment of an indebtedness of $2,861.27, and having many years ago instituted suit against Wilcox to secure damages for the alleged conversion, and having obtained a judgment for something over $2,000, an assignment of this judgment was made to defendant to secure him for money advanced to enable plaintiff to carry on the litigation; that this assignment was not intended to vest full title in the defendant or to authorize him to settle or adjust the claim; that, notwithstanding this restricted purpose of the assignment, the defendant availed himself of this appearance of authority and settled the claim for $1,500 and caused the suit to be discontinued by the attorneys of record.

The defendant claimed on the trial:

“1. That the plaintiff in fact had no cause of action against Wilcox, who, as sheriff, represented the creditors of the mortgagor, for the reason that the mortgage was a fraud upon such creditors.
“2. That the settlement of the suit against Wilcox was made with full authority of plaintiff.
“3. That a certain note of $554, held by defendant, given by plaintiff, should be allowed in reduction of plaintiff’s demand if one be found to legally exist.”

On trial of the case before a jury a verdict was given for plaintiff in the sum of $3,024.65, which was found as the value of the plaintiff’s claim against Wilcox, less the advance for expenses made by defendant. Defendant moved for a new trial; and, on this motion being denied, now brings error.

It is strenuously insisted that the evidence conclusively shows that the original mortgage to plaintiff and his partner Outhouse was fraudulent as to creditors, and that, if this should not be held as matter of law, the verdict is so clearly against the weight of the testimony on this point that the order refusing a new trial should for this reason be vacated. A consideration of the record leads to the conclusion that the question of fraud was a fair one for the jury, was fairly submitted, and that the verdict is not so grossly against the weight of the testimony as to justify a vacation of the judgment. The circuit judge charged the jury in effect that, if the jury found that the mortgage under which plaintiff claimed the property seized by Wilcox was fraudulent as to the creditors of the mortgagor, the basis upon which the jury should proceed was the #1,500 actually received by the defendant. This instruction is. complained of. It is insisted that, if plaintiff' was attempting to enforce an unconscionable and fraudulent claim against Wilcox, the court should not give him its aid to recover the fruits of a settlement of such unlawful demand. What might be said of this contention if the case showed that the plaintiff had been aided to a recovery by this instruction need not now be stated, as the record shows that the jury found specially that the mortgage was not fraudulent as to creditors.

The claim of $554, based on plaintiff’s note, was fully discussed on the former hearing. The circuit judge followed the ruling of this court on that question, and the defendant is not entitled to a reconsideration of the question. That holding has under repeated decisions become the law of this case.

Judgment affirmed.

McAlvay, G-rant, Blair, and Ostrander, JJ., concurred.


author: Hooker, J.

text:
    HASTINGS INDUSTRIAL CO. v. MORAN.
    1. Foreign Corporations — Oontraots—Interstate Commerce.
    A contract by a foreign corporation to construct and equip a factory in this State, in the performance of which materials must be purchased and labor performed in this State, notwithstanding the machinery is manufactured and shipped from another State, and the corporation maintains no office, warehouse, or general agent in the State, is not interstate commerce, and the contract is not exempt on that ground from the operation of the statute (Act No. 206, Pub. Acts 1901) providing terms upon which foreign corporations may be permitted to maintain suits in the courts of this State.
    2. Same — Statute—Construction.
    Since the enactment of section 1, Act No. 206, Pub. Acts 1901, the contracts made in this State by foreign corporations which have not been authorized to do business here, are not void, and suit may be maintained on such a contract after the corporation has complied with the statute.

    Error to Huron; Beach, J.
    Submitted February 1, 1906.
    (Docket No. 82.)
    Decided April 30, 1906.
    Assumpsit by the Hastings Industrial Company against James Moran for an unpaid subscription to the capital stock of a corporation. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Bope & McNabb, for appellant.

      James H. Hall {William F. Atkinson'and Frank W. Atkinson, of counsel), for appellee.

       As to validity of contracts made by foreign corporations which have not complied with statutory conditions of the right to do business in a State, see note to Edison General Electric Co. v. Canadian Pacific Navigation Co. (Wash.), 24 L. R. A. 315.

   Hooker, J.

The plaintiff is an Illinois corporation. On April 3,1903, it entered into a contract with the defendant and others, severally, to construct and equip a canning factory at Port Austin in this State according to certain plans, specifications, terms, and conditions, set forth in the contract, and defendant promised, in consideration thereof, to pay to the plaintiff the sum of $100. Plaintiff had not filed its articles of association with the secretary of State, but on May 27, 1903, it fully complied with the requirements of the statute in that regard. It began the construction of the plant immediately after making the contract, and completed it on July 2i, 1903, according to the contract. On May 4, 1903, the defendant and his associates filed articles of association as the Port Austin Canning Company, as required by the contract. On completion of the factory the keys were turned over to the executive committee of the second parties to the contract, and its members executed and delivered the following :

“Port Austin, Mich., July 21, 1903.
“The Hastings Industrial Co.,
“Chicago, 111.
“We the undersigned executive committee, representing second parties for the erection of canning factory at Port Austin, Michigan, have this day inspected said factory with your builder, August Miller, and find nothing lacking to complete the same, excepting one continuous steam exhauster and one apple filler with belt and pulley for same; these to be furnished at your expense, within thirty days from date of this acceptance. The additional buildings ordered by us are satisfactory, and we authorize you to collect from subscribers, $268.94 in payment for same in addition to $12,800.00 the contract price, which shall constitute payment in full for said factory. We have this day accepted keys to said factory.”

All of the machinery and equipment was shipped into this from other States, and no part of the contract values were furnished within this State, except the construction of the foundation and buildings and the placing of machinery, amounting in all to about 30 per cent, of the contract price. At no time prior to the completion of the building had plaintiff an office, warehouse, or general agent in this State. The trial judge directed a verdict for the defendant, upon the ground that the contract was void when made, the plaintiff having not complied with the statute, and that the subsequent compliance did not make the contract valid or give the plaintiff the right to a remedy in this State. The plaintiff has appealed from a judgment, and the only error alleged rests on the direction of a verdict for the defendant.

It is contended that the contract is not within the provisions of the various statutes of this State, relating to the requirements of a franchise tax, etc., from foreign corporations, for the reason that the contract is one relating alone to matters of interstate commerce. We held in Coit & Co. v. Sutton, 102 Mich. 324 (25 L. R. A. 819), that these statutes do not apply to contracts made in this State, for the purchase of articles in other States, which by the terms of the contract are to be sent to the purchaser from without the State, for the reason that it would be an interference with interstate commerce. But this is not such a case. It is true that it contemplated the furnishing of such articles, but the contract required the plaintiff to erect in Michigan a building, and install in running order such articles as go to make up a canning factory, as specified in the contract. It was necessary to purchase materials and employ men in Michigan to carry out this contract, and clearly contemplated and included something more than interstate commerce. A similar case is Oakland Sugar Mill v. Fred W. Wolf Co., 118 Fed. 246. In that case the question was one for a jury, but on the present record there is no disputed question of fact, and the learned circuit judge did not err in taking the question from the jury.

The remaining question is whether he was justified in holding that the plaintiff could not recover, upon the ground that the contract was void, or, if not void, that the plaihtiff could not be permitted to sue in our courts. Several cases have been decided wherein it was held that a foreign corporation’s contracts could not be enforced in our courts by the offending corporation, where the statutes (2 Comp. Laws, § 7219, and 3 Comp. Laws, §§ 8574, 10467) had not been complied with. See Seamans v. Temple Co., 105 Mich. 405 (28 L. R. A. 430); People’s Mut. Ben. Society v. Lester, 105 Mich. 716; Rough v. Breitung, 117 Mich. 51; Heffron v. Daly, 133 Mich. 613. The earliest of these statutes (section 10467) was in force for many years. It applied to all foreign corporations, and did not in terms declare the contracts void, but excluded them from our courts. It did not refer alone to contracts intrinsically objectionable for any other reason than the want of authority of the foreign corporation to contract in this State. In 1893 an act was passed (3 Comp. Laws, § 8574) requiring all corporations desiring-to do business in the State to pay a franchise fee, and comply with other provisions, and providing that all contracts made in this State, after January 1, 1894, by any corporation which had not first complied with the provisions of that act, should be wholly void. Under this section, Chief Justice Grant, with the concurrence of his associates, said that such a contract was void, and, while it might be estopped to plead the invalidity of such a contract in its defense, it could not maintain an action upon it in our courts. [Rough v. Breitung, 117 Mich. 56.]

Section 7219, is a part of the insurance law of the State. It was enacted in 1889, and was not aimed at the status of the company, but attempted to prevent the making of certain kinds of insurance contracts, by punishing such acts by fine and imprisonment. It did not say that such contracts would be void, and it may be added that such contracts were therefore lawful. It was held, however, that such contracts, being prohibited by law, were void, under the general rule. See Heffron v. Daly, 133 Mich. 615. The case was followed in Union Trust Co. v. Preston Nat. Bank, 136 Mich. 460. A lengthy note to the Washington case of Edison General Electric Co. v. Navigation Co., reported in 24 L. R. A. 315 (8 Wash. 370), cites many authorities in support of the doctrine laid down in the Heffron Case. Recent cases are cited in 3 Current Law, p. 817, and note. See, also, Aspell v. Hosbein, 98 Mich. 117; Pillen v. Erickson, 125 Mich. 68; Clark v. Kent Circuit Judge, 125 Mich. 454; American Ins. Co. v. Stoy, 41 Mich. 396.

This was a prohibited contract and under the authorities cited cannot be enforced, unless, as counsel contend, Act No. 206, Pub. Acts 1901, has changed the rule. Section 1 of said act provides that it shall be unlawful for a foreign corporation to carry on business in this State, unless it shall first have filed or recorded a certified copy of its charter or articles of association. Said section provided further that:

“Noforeign corporation, subject to the provisions of this act, shall maintain any action in this State upon any contract made by it in this State after the taking effect of this act, until it shall have fully complied with the requirements of this act, and procured a certificate to that effect from the secretary of State.”

We are of the opinion that counsel’s contention must prevail, if we are to give any effect to the words {‘ until it shall have fully complied with the requirements of this act,” and that the language indicates an intention that the contract should not be void, but that the right of enforcement by the corporation is prohibited until it complies with the act.

The judgment is reversed, and a new trial ordered.

McAlvay, G-rant, and Moore, JJ., concurred. Ostrander, J., concurred in the result.


author: Grant, J.

text:
    AMOS-RICHIA v. NORTHWESTERN MUTUAL LIFE-INSURANCE CO.
    1, Life Insurance —Delivery op Policy — Evidence — Burden op Proop.
    In an action on a life-insurance policy, found among the papers of the assured after his death, accompanied by uncanceled revenue stamps necessary to be affixed and canceled before action could be maintained upon it in the Federal courts, the burden of proving delivery of the policy and payment or. waiver 'of payment of the premium is upon the plaintiff, since the presumption of delivery arising from possession of an instrument does not obtain where on the face of the instrument some act remains to be done to make it complete.
    3. Internal Revenue — Stamps—Application to State Court.
    The provision of the internal revenue law that no action can be maintained upon an unstamped instrument is applicable only to the Federal courts.
    Error to Wayne; Donovan, J.
    Submitted February 3, 1906.
    (Docket No. 94.)
    Decided April 30, 1906.
    Assumpsit by Lavern Amos-Richia against the Northwestern Mutual Life-Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Thomas A. E. Weadoclc, for appellant.

      McGrath, Nutten & Donaldson, for appellee.
   Grant, J.

For a general statement of this case we refer to Northwestern Mut. Life-Ins. Co. v. Amos, 136 Mich. 210. We there held that a suit in equity would not lie, as the complainant had. a complete and adequate remedy at law. After that decision the defendant there and the plaintiff here remarried, and brought this suit on the $3,000 policy, which resulted in a verdict and judgment for her. Any further statement of facts essential will be made in connection with the points raised.

The first question arises upon the delivery of the policy. Plaintiff’s claim is based entirely upon the production of the policy. She made no proof of payment or delivery except the fact that this policy was found among her husband’s papers in the office of his employer. The court held that the policy, being found among his papers, was. prima facie evidence both of payment of the premium and delivery of the policy, and cast the onus probandi upon the defendant to prove nonpayment and nondelivery. This presents the first important question. The policy provided:

“This policy shall not take effect until the first premium shall have been actually paid while the insured is in good health.”

This policy with the other one for $3,000 was written by the company at Milwaukee, its home office, dated December 30, 1899, and mailed to its general agent in Chicago. The law required internal revenue stamps to be affixed to the policy, and canceled; otherwise, it could not be adduced in evidence in the Federal courts, and, of course, no suit could be maintained upon it in those courts. It is held, however, in this State that this provision of the revenue law does not apply to State courts, but only to the Federal courts. Clemens v. Conrad, 19 Mich. 170; Sammons v. Halloway, 21 Mich. 162. It is improbable that the plaintiff would have attempted to deliver, and that the insured would have received, a policy so incomplete that no suit could be maintained upon it in the Federal courts. If this provision of the revenue law had been held by this court as it had by some other courts to apply to State courts, the burden of proof would clearly have remained with the party asserting the execution of the policy to show a compliance with the revenue law and a complete execution of the policy.

Inclosed with, and pinned to, the policies, in envelopes, were starqps ready to be attached and canceled when the policies were delivered and the premiums paid. On the outside of these envelopes in large print was the following:

“Stamps inclosed $1.60 to he attached to second page of policy No.-when put in force. The stamps must be canceled by the agent writing in ink across the face the initials of the company and the date.
“ If the policy is returned to the company for any purpose before delivery, the uncanceled stamps must, of course, accompany it.
‘ ‘ Example of cancellation of stamp: c N. M. L. I. Co. July 27, ’98.’”

The policies, when discovered among the deceased’s papers, were in the same condition as when forwarded from the office at Milwaukee; the uncanceled stamps being in the envelopes, and pinned to the policies, with the above instructions printed in large type upon the envelopes. Is it reasonable to imply under these circumstances that the agent neglected the instructions of his principal and the requirements of the law, and inadvertently executed the policies ? It seems to me unreasonable.

The court excluded all evidence of the employés, agents, or officers of the defendant to show that the premiums had not been received, and the - circumstances under which the policies were given into the possession of the deceased. The revenue law provides that where any instrument has not been duly stamped at the time of making or issuing the same, by reason of accident, mistake, inadvertence, or urgent necessity, and such fact is proven by oath or otherwise to the satisfaction of the collector, he may remit the penalty, attach the stamps, and cancel them.

The attorney for the plaintiff took the policies to the collector, stated that they were in the plaintiff’s possession lawfully, that Mr. Amos was dead, that he represented the beneficiary, and that the stamps had been inadvertently omitted. The attorney made no explanation how he knew they had been inadvertently omitted. The collector, relying upon the attorney’s statement, affixed the stamps and canceled them. The collector did not read •the instructions upon the envelopes. The court excluded all questions propounded to the collector tending to show that, i£ he had read the indorsements upon the envelopes, he would not have attached the stamps and canceled them. It was the duty of the company to cancel the stamps when delivered. The only authority conferred by law upon the collector to affix and cancel the stamps, at the request of either Mr. Amos or his beneficiary after death, was the production of satisfactory proof that the affixing and cancellation of the stamps were omitted by inadvertence. No claim was then made, and none is now made, that they weie omitted by accident or mistake. The natural presumption is that these stamps were placed in the envelopes and pinned to the policies for attachment and cancellation when the policies were actually delivered, the premiums paid, and the policy put in force. The defendant’s agent might accidentally have left the policies in Mr. Amos’ office, and he may have put them in the safe for safe keeping, or they might have been left with him for examination, a thing not uncommon, or he might have acquired possession of them in other ways, and under the plaintiff’s theory, and the ruling of the court, the presumption would be that the policies were delivered, that the stamps were omitted by inadvertence, and the premium-paid. The bare statement of the case is sufficient to condemn its soundness. We are cited to no case decided upon similar facts.

The instrument when found was incomplete. It had no stamp affixed and canceled as the law required. There is no testimony of any mistake or inadvertence. The attorney, who presented the policy to the revenue officer, was wholly ignorant of the circumstances under which the deceased came into possession of it. It follows that the collector had no evidence to justify him in affixing the stamps, canceling them, and thus giving life to the policy, and that the burden of proof to show both delivery and payment of the premium was upon the plaintiff. It is significant that the defendant produced such proofs of the financial transactions and circumstances of the deceased as to show almost conclusively that he had never paid the premiums. While it is undoubtedly the rule that possession of an instrument is presumptive evidence of delivery, that presumption cannot be entertained where, upon the face of the instrument, some act remains to be done to make.it complete. The instrument to which this rule of presumption applies must be “in form of a complete contract.” Kerr on Insurance, pp. 95, 96.

“An express provision in a policy that the company shall not be liable until the premium be actually paid, is waived by an unconditional delivery of the policy of the insured as a completed and executed contract, under an express or implied agreement that credit be given for the premium.” Kerr on Insurance, § 131.

There are other errors in the case, but, as it is hardly probable that the same will occur upon a new trial, we decline to pass upon them, and reverse the case only upon the above error, without passing upon any of the' other questions.

Judgment reversed, and new trial ordered.

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


text:
    BURRMAN v. GRAND TRUNK WESTERN RAILWAY.
    1. Master and Servant — Personal Injuries — Railroads—Fellow-Servants.
    Where the foreman of a railroad construction gang, operating with a train, orders the train to be moved, which is done without giving the statutory signals, resulting in the injury of a laborer, the negligence of not giving the signals is that of the engineer and fireman in charge of the enginé, who are fellow-servants of the laborer, and the foreman not being in a position to see that the laborer is in danger, the railroad company is not liable.

    2. Same — Lookout—Duty to Maintain.
    A railroad company operating a construction train consisting of a locomotive, way car, and flat car, the flat car being in the rear, owes no duty to the laborers of the gang to keep a lookout stationed on the flat car when the train is backing.
    Error to Wayne; Frazer, J.
    Submitted February 8, 1906.
    (Docket No. 116.)
    Decided April 30, 1906.
    Case by Charles Burrman against the Grand Trunk Western Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Thomas Hislop, for appellant.

      Harrison Geer, for appellee.

       As to whether servants handling work train and servants employed on permanent way are fellow-servants, see note to Sofield v. Guggenheim Smelting Co. (N. J. Err. & App.), 50 L. R. A. 434.

   Ostrander, J.

Plaintiff, in November, 1901, sustained serious personal injury by being struck and run over by defendant’s work train at Swartz Creek, in this State. He was, with other workmen, engaged in making repairs to a switch on the railway tracks, and in crossing the south one of two of defendant’s tracks, constructed eight feet from each other, for the purpose of reaching a pile of splits, which were to be loaded upon a small car on the north track, was the last man to cross, was struck by a flat car, which, with the attached locomotive, was used in construction and had for some time been standing upon the track a short distance, perhaps a car length, to the east of the place where the injury was inflicted.

It is charged in the declaration that the locomotive was in charge of an engineer and fireman, who, with plaintiff and all others there employed, were under orders of and required to obey one Frank Transzaw, foreman of the construction crew, and that the train, which had for a long period of time remained stationary, was, by order of the foreman and without warning, negligently and carelessly and recklessly moved; that no lookout was stationed upon the flat car. It is the theory of counsel for the plaintiff that the foreman was the person responsible for the injury, he being upon the locomotive and having ordered the train moved at a time when, obeying his instructions, the men were crossing or about to cross the track upon which the train was operated; that the foreman was in no sense the fellow-servant of plaintiff, but represented and stood in place of defendant. The trial judge, who directed a verdict for the defendant, thus expressed his views:

“ Suppose a man should control a certain number of men as the foremap did in this case, and he says to these men, move this train; he is not responsible if those men violate their rules, the rules of the company, in the moving of that train; but,'if he directs the moving and violates the rules, then that company is liable; but the company is not liable for the violation of the rules by somebody under the direction of the vice principal, because they do not carry out his orders according to the rules laid down by the .company. You see, to make him responsible for the act of another man would be unreasonable and unjust. There is no evidence in this case that he ordered this train moved without the bell being rung or the whistle being blown. If he had said so, if he had said, ‘move this train, you need not ring the bell or blow the whistle,’ and he was a vice principal, then the company would have been liable for it; but if he orders them “to move the train, and the engineer was guilty of this negligence, it is not the negligence of the railroad company nor of the vice principal, but the negligence of the engineer and fireman whose duty it was to ring the bell and blow the whistle. Therefore. I say to you, and I charge you, for the benefit of the plaintiff in this case, so that my opinion may be reviewed fully, and all questions may be presented, and nothing may be omitted on the part of the circuit judge in delivering the opinion, I charge you that in this case the negligence proven in this case was the negligence of a fellow-servant, even if this negligence had been the negligence of the foreman of the gang, and I am amply sustained in this opinion, and I am required to give this opinion under the law' as I interpret it, by the authority of Schroeder v. Railroad Co., 103 Mich. 213 (29 L. R. A. 321). They have reviewed all these cases, and they have attempted to distinguish different cases. I will pass that by, and I will follow the authority of 103 Mich., laid down by a majority of the court, w.hich is binding upon me, that in my opinion this foreman was a fellow-servant, and then I go further and say that, even if he was a vice principal and not a fellow-servant, the negligence, under the evidence here, is not shown to be the negligence of the foreman, because he has the right to move the train whenever he sees fit, and if anybody else — the engineer or the fireman' —sees fit to be guilty of negligence, it is not chargeable against the vice principal, and not chargeable against the railroad company. These are the principles I am compelled to lay down from these cases, and I have attempted to base my opinion and lay down what I conceive to be •something of the reason for distinguishing between a vice principal and a fellow-servant. It is the law, in my opinion, laid down by the Supreme Court that guides me in expressing my opinion here, and my duty is nothing more than to charge you: First, that the plaintiff has been guilty of contributory negligence in passing across those tracks in the way he did, without looking to see whether the other train was moving down upon him or not; secondly, that, if I am wrong in that proposition (and I don’t think I am) in the second place, the negligence was the negligence of a fellow-servant — therefore, gentlemen of the jury, it is my duty to instruct you to render a verdict for the defendant in this case.
Mr. Hislop: Your honor, perhaps, did not notice that the plaintiff swore he did see *he train before he left the other track, and it was standing still when he started to cross.
“The Court: Gentlemen of the jury. If the plaintiff did look at the train before he attempted to cross that track — I did not care to put the case in as strong a way as that against the plaintiff — but if he did look at that train and it was standing still, he could have passed over that track with any kind of degree of care without being hurt at all; any man that could not pass over a track with a car just starting up in 50 feet must have stood there for some purpose unknown to me, and, if he did see that train moving and undertook to pass before it, he was not only guilty of contributory negligence, but in my opinion of almost criminal negligence for undertaking to pass before a moving train in that manner.”

The bill of exceptions contains all of the testimony. It has been carefully read. There is no testimony tending to show that the foreman, having directed the train to be moved, had or assumed any control over the machinery of movement, or that he was in position to see that plaintiff was in danger. Failure to give signals, if any were required, was the fault of the engine men, who were clearly fellow-servants of plaintiff. They were all engaged in the common enterprise of double-tracking defendant’s road. La Barre v. Railway Co., 133 Mich. 192. The train was on defendant’s track. No lookout was stationed upon the flat car, but there were two men on the car who, until it began to move, were loading it with lumber. The train consisted of a way car, flat car, and locomotive. There is nothing in the record to support the theory that defendant owed to plaintiff the duty to maintain, under the circumstances, a lookout on the car. Carlson v. Railroad Co., 120 Mich. 481.

"What has been said disposes of the case and requires affirmance of the judgment. It is, however, proper to say further that evidence of the negligence of plaintiff contributing to the injury is most conclusive.

Judgment affirmed.

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