author: Moore, J.

text:
    JORDAN v. Le MESSURIER.
    1. Appeal and Error — Evidence—Admissibility—Exceptions.
    An assignment of error that certain testimony taken on a former trial was received in evidence because the witness was only absent temporarily and had not been subpoenaed, will not be considered on appeal, where the only objection made on the trial was as to its competency and relevancy, no exception taken to the ruling, and the testimony does not appear in the bill of exceptions.
    2. Negligence — Evidence—Question for Jury.
    In an action for personal injuries caused by a runaway horse owned by defendants, evidence examined, and held, to have been properly submitted to the jury.
    3. Trial — New Trial — Argument of Counsel — Discretion of Court.
    A motion for a new trial on the ground of improper argument of counsel was properly denied, where it appears that the , trial court did not abuse his discretion in denying the motion.
    Error to Wayne; Donovan, J.
    Submitted November 9, 1908.
    (Docket No. 111.)
    Decided December 21, 1908.
    Case by Lide Jordan against William J. Le Messurier and Joses T. Le Messurier, copartners as Le Messurier Bros., for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Lehman, Biggs & Lehman, for appellants.

      Lodge & Brown, for appellee.
   Moore, J.

The plaintiff sued defendants to recover damages because of personal injuries received by her from a runaway horse owned by the defendants. The case was tried before a jury. It is brought here by writ of error.

Plaintiff’s account of the accident is as follows:

‘ ‘ I was injured between 9 and 10 a. m. I was going to a place on Forter street, about a block and a half from Baker. I had been at 139 Nineteenth street, a block and a half south of Baker, and had just left there, and I was going to the Hammond & Standish packing house at the corner of Twentieth street and the railroad. I had my wheel with me, and I went right north on Nineteenth street to Baker, and then turned west on Baker, on the south side of Baker. I turned about midway between the curb and the railway track. I was watching carefully. I always watched out where I was going on my wheel. I might say I never had an accident. I never had a puncture of my wheel. I have worn out a good many tires. I was riding slowly. I left 139 Nineteenth street, and rode up to Baker street, and as I was approaching a vacant lot there, I saw .the car coming, and I was riding about medium way of the street at my right. I glanced up and saw a car, and I rode up along to Baker street, and I saw the car, that it was coming as though it was coming to a stop. As I approached the intersection of Baker street and Nineteenth street, I saw that I could not cross the crossing without hurrying in front of the car. I turned to my left on the south side of the street going west. I had not any more than turned when I heard a call of some kind. I looked behind me and saw a horse coining. I do not know what the call was. It was some warning. I supposed at the time it was some warning from some one on the car. It seemed behind me, and I looked over my shoulder and saw the horse coming. He was coming kind of back of the car, seemed to be coming kind of cross back of the car. I dismounted my wheel. I had taken but a few steps to go to the curbstone, and a severe blow struck me here on my leg, and knocked me down, and the next moment it seemed my arm was thrown that way, and I felt the wheel run over my arm. I started to get up, and I went down, and I tried again, and got part way up, and some one took hold of me, and I then saw Dr. Kennedy.”

It was the claim of the plaintiff that the horse which caused the injury was hitched to a laundry wagon, and that the driver left the horse unhitched, while he went into a house and delivered some laundry work, and that because of this negligence the runaway occurred. It is the claim of defendants that, when the horse w as left in the street, it was secured by letting down a weight upon the street or pavement which was in common use for such a purpose, and that there was no negligence in the way the. horse was left.

There are a number of assignments of error. It is asserted that the court erred in permitting the testimony of Dr. Kennedy, given on a former trial, to be read in evidence, because the doctor was only absent temporarily, and upon a visit, and had not been subpoenaed. The only objection made to the admission of this testimony was that it was irrelevant and incompetent. No exception was taken to the ruling of the judge, and the testimony itself does not appear in the bill of exceptions. Under such a record we decline to consider the assignment of error.

It is asserted that the court erred in not granting a new trial, for the reason that the verdict was clearly against the overwhelming weight of testimony. The jury were told that if they found any fault in the plaintiff herself, in her want of care, she could not recover; that, if it was an accident, no recovery could be had.

“Negligence, again, as requested to charge, is the failure to act as a man of usual prudence would act, under like circumstances. If the driver, who was the defendants in this case, was negligent, then the defendants are negligent; but if he was not, and if they had no notice that they had an unsafe horse or a horse of that kind to break and run away, then they are not negligent. * * * If the weight was upon the ground, the driver is not negligent. If it was duly let down in place, it was not his negligence. If the weight was not in place, where a prudent driver would put it, or one of ordinary care, but was left up in the wagon, then the whole case would be right there. You are to weigh and consider all, and every part of this testimony, each and all of the witnesses.”

There was testimony which fairly raised the question as to whether the driver let down the weight, and it became a question for the jury.

It is said the court erred in not granting a new trial on the ground of the negligent act of plaintiff in failing to look where there was no obstruction to her view, or in taking the chance if she did look and saw the horse coming. 4 We do not think it can be said, from this record, as a matter of law, that plaintiff was so negligent in her conduct as to preclude a recovery.

It is said the court erred in not granting a new trial on account of the prejudicial, inflammatory, 'and unwarranted statements made by the attorneys for the plaintiff. A portion of the argument of counsel for both parties appears in the record accompanied by exceptions. We have examined these arguments with care, and do not think it can be said that the trial judge abused his discretion in denying a new trial because of what was said by counsel -

The other assignments of error have been considered» but do not call for discussion.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    KERR v. NATIONAL FULTON BRASS MANUFACTURING CO.
    1. Master and Servant — Injury to Servant — Liability of Master — Guarding Dangerous Machinery — Statutes—Evidence-Question for Jury.
    The liability of a master for injury to a servant by reason of failure to guard dangerous machinery, under the provisions of Act No. 113, Pub. Acts 1901, depends upon the fact of the order having been made by the factory inspector and brought to the notice of the master; and where, in such action, there was conflicting evidence whether such order had been made and notice thereof received, the question was properly submitted to the jury.

      2. Same — Guarding Dangerous Machinery — Machines Installed Subsequent to' Notice.
    A notice to guard emery wheels in use in defendant’s factory is broad enough to include wheels subsequently installed.
    3. Trial — Misoonduot of Counsel — Improper Questions.
    In an action for negligently causing the death of plaintiff’s intestate, by failure to guard dangerous machinery, after a ruling excluding an inquiry as to defendant’s interest in the case, it is error to attempt, by further questions, to bring to the attention of the jury the fact that defendant was protected by liability insurance, with the evident purpose of importing into the case facts not bearing upon the issue to be tried.
    Error to Wayne; Hosmer, J.
    Submitted November 10, 1908.
    (Docket No. 16.)
    Decided December 21, 1908.
    Case by Mary Kerr, administratrix of the estate of Charles Kerr, deceased, against the National Fulton Brass Manufacturing Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Keena, LigMner & Oxtoby, for appellant.

      Samuel E. Jones, for appellee.

      As to master’s statutory liability for defects in condition of plant, see note to Coley v. Railroad Co. (N. C.), 57 L. R. A. 817.

   Montgomery, J.

This action is brought to recover damages for the death of plaintiff’s husband; the claim of negligence relied upon at the trial being that the defendant failed to guard an emery wheel which was used in its factory, although required to do so by the direction of the factory inspector, and that plaintiff’s intestate, who was employed in grinding castings on the emery wheel in question, was instantly killed on the 16th of June, 1904, while grinding a malleable iron casting, and that, while thus engaged, the emery wheel flew apart, and a portion of the broken wheel hit him in the head, causing his death. A verdict was rendered in favor of the plaintiff of $3,500 and judgment entered thereon.

The case is based upon Act No. 113 of the Public Acts of 1901, and particularly upon section 8, which provides:

“All vats, saws, pans, planers, cogs, set-screws, gearing and machinery of every description, shall be properly guarded when deemed necessary by the factory inspector.”

There was evidence tending to show that on the 12th of November, 1902, Henry J. Eichoff, a deputy factory inspector, visited the defendant’s plant and gave a written notice to defendant requiring defendant, among other things, to guard the emery wheels. There was testimony tending to show that at least one of the emery wheels in use on defendant’s premises was guarded by an iron guard, but that the wheel in question was not so guarded. The evidence offered to show this requirement was a carbon copy of a notice claimed to have been served by Eichoff upon the defendant, the original of which was not produced. Section 13 of the act provides that the inspector shall make a report of his inspection to the commissioner of labor, and shall leave a copy of his report with the person in charge of the factory. Section 15 of the act requires at least an annual inspection of manufacturing establishments. This section also provides that the commissioner of labor shall present to the governor, on or before the 1st of February of each year, a report of such inspection. These reports are found in the annual publications made by the commissioner of labor. The reports of the commissioner of labor from the years 1901 to 1904, inclusive, do not show a report from the factory inspector requiring the guarding of this emery wheel.

Two questions are suggested:

First. It is contended that the liability of the defendant should not be made to depend upon the oral testimony of the factory inspector, but that some written record of the orders made by the inspector should be had before the manufacturer should be charged with the violation of the statute.
Second. That, as the alleged notice to guard the emery wheels was given before the installation of the present emery wheel, such order cannot be held to relate to the emery wheel in question.

We think the liability of the defendant depends upon the fact of the order having been made by the factory inspector and brought to the notice of the owner. In the present case, such order did not rest in parol, but was in the form of a written notice, if the testimony offered on the part of the plaintiff is to be believed. There was upon this question a sharp conflict of testimony, and the question presented was one of fact for the jury. We also think that this notice was broad enough in its terms to include emery wheels subsequently installed. If this were not so, any change in the factory occurring between the periods of inspection would authorize a complete departure from the spirit, and indeed from the letter, of the directions given by the factory inspector, and would render the provision for inspection of little value. The testimony offered by the plaintiff as to the guarding of other emery wheels in defendant’s plant was competent, if for no other purpose than as tending to show that' it was practicable to obey the order of the factory inspector.

After plaintiff and defendant had both rested, and plaintiff had called a witness in rebuttal, plaintiff’s counsel called Mr. Beal, who was secretary and treasurer of the defendant company, as a witness, and propounded the following question:

“ Yfhat interest has the National Fulton Brass Manufacturing Company in this case ? ”

This question was objected to and the answer excluded. Not content with this ruling, he again asked:

“You secured a liability insurance at that time, did you not, Mr. Beal?”

This was also objected to and excluded. Defendant’s counsel thereupon moved the court to withdraw the case from the consideration of the jury. This was refused, and, so far as the record discloses, there was no reprimand of plaintiff’s counsel, nor were the jury given any special instruction relating to this alleged misconduct of plaintiff’s counsel. It is not conceivable that plaintiff’s counsel believed the testimony offered to be competent, or that it could bear in the remotest degree upon any issue presented to the jury for trial. He himself had brought his suit against the National Fulton Brass Manufacturing Company, the defendant in this case. If that company was not liable, the suit should not have been brought, and he must have known it. No question was raised that the defendant company was the owner of the factory in question, and that the alleged negligence, if proven, was the negligence of the defendant company. The only purpose for which the question first quoted was propounded was to divert the attention of the jury from' the issue, and, if possible, to seek to prejudice the jury by impressing upon them that it was of no consequence to the defendant of record whether the verdict went for the plaintiff or defendant. This was manifestly an attempt to import into the case facts which did not bear upon the issue. Had the proceedings stopped here, there might be some room for saying that the question was asked in good faith; but, after this ruling had been secured, a question identical in principle, but with the purpose of showing that the liability, if any, was the liability of some unknown insurance company, was propounded, doubtless in the belief that the jury might be less careful of the rights of the insurance company than of the defendant. This was absolutely without excuse, and is not only deserving of censure, but calls upon us to make sure that this attempt to divert the jury from the real issue in the case shall not cause a miscarriage of justice. The conduct of counsel is similar in kind to that censured by this court in the cases of Clink v. Gunn, 90 Mich. 140, and Turner v. Foundry Co., 97 Mich. 166. If counsel persist in attempts to take unfair advantage of litigants, the responsibility must rest with them and not with the court. This case was a close one on its facts. The defendant was entitled to have its own case, and not that of some one else, adjudged by this jury. The calling of the defendant’s officer to the stand and propounding these questions was in effect an assertion of the existence of the fact, as counsel well knew. The jury would not fail to see this, and to infer from the objection made by defendant’s counsel that the facts were as stated; and that the facts so stated had no relevancy to the issue, and in no way affected the question of defendant’s liability, is so entirely clear that it cannot be assumed that plaintiff’s counsel was ignorant of the law, and, if he were thus ignorant in the outset, he could not urge that excuse for propounding the second question after he had been properly instructed by the trial judge.

The judgment is reversed, and a new trial ordered.

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


author: Ostrander, J.

text:
    LIEBLER v. CARREL.
    1. Intoxicating Liquors — Civil Damages — Actions —Issues— Evidence — Admissibility—Trial.
    In an action under the civil-damage act for furnishing plaintiff’s minor son with intoxicating liquors, if the defense desires to show, in mitigation of damages for injury to plaintiff’s feelings, that her purpose in bringing the suit was to harass defendant and aid his competitors, he should directly tender the issue by testimony tending to connect her with such motive; not having done so, he cannot give evidence relating to difficulties of another in obtaining a license for a saloon in a building owned by plaintiff’s husband.

      2. Same — Civil Damages — Requests to Charge — Instructions.
    In such action, under the statute (sections 5398, 5899, 2 Comp. Laws) providing an action for damages to a parent against one selling, giving, or furnishing intoxicating liquors to a minor, a charge that plaintiff must establish a “sale”in order to recover, given after a request to charge that plaintiff could recover by showing a “sale, giving, or furnishing” of said liquors, was misleading and prejudicial, though plaintiff’s counsel did not object to it when given, when considered with improper suggestions by defendant’s counsel dur. ing the trial of evidence not properly in issue, though such evidence was excluded.
    3. Trial — Argument op Counsel — Matters not Within Issue.
    In an action under the civil-damage act by a mother for damages for selling intoxicating liquors to her minor son, suggestions by defendant’s counsel, in examining jurors and in asking questions of witnesses, that plaintiff’s motive in suing defendant was to harass him because his saloon had interfered with a competitor occupying a building owned by plaintiff’s husband, were prejudicial, where, although .the questions were excluded, nothing was said as to the improper suggestions in the charge.
    4. Intoxicating Liquors — Civil Damages — Evidence. '
    Evidence that plaintiff’s husband rented a building for saloon purposes and was a surety upon a liquor dealer’s bond was immaterial to the issue; plaintiff’s connection with such facts not being shown.
    5. Same — Civil Damages — Evidence — Mitigation op Damages.
    In such action, it is proper to prove, in mitigation of damages, that the minor son was in the habit of becoming intoxicated prior to the time when it is claimed such liquors were furnished.
    6. Same — Civil Damages — Evidence—Contemporaneous Sales.
    When, in such action, the plaintiff proves specific acts of intoxication, and defendant denies having made any sales, it is competent to prove that the intoxication was, in fact, caused by liquor furnished by another; but neither as a defense to the action, nor for the purpose of dividing with another the liability imposed by the statute, may prior or contemporaneous sales be considered.
    Error to Kent- Mayne, J., presiding.
    Submitted November 10, 1908.
    (Docket No. 137.)
    Decided December 21, 1908.
    Case under the civil-damage act by Lena Liebler against Isaac W. Carrel for the sale of intoxicating liquor to plaintiff’s minor son. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Fred P. Geib, for appellant.

      Richard L. Newnham (E. A. Maher, of counsel), for appellee.
   Ostrander, J.

The plaintiff is the mother of Orr Liebler, who attained his majority December 8, 1907. Defendant is the proprietor of a hotel at Caledonia, and in connection with the hotel, he maintains a bar for the sale of liquors. This suit was begun in August, 1907, to recover damages occasioned by the selling and furnishing to the minor by defendant and by his agent spirituous, malt, brewed, and fermented liquors. It appears that the case was tried at the December, 1907, term of the circuit court for the county of Kent, resulting in a verdict for the plaintiff for the sum of $900; that defendant moved for and obtained a new trial upon the ground that the jury had been erroneously instructed. This is the second trial of the case, the result of which was a verdict for the defendant. Plaintiff moved for a new trial, which the court denied, and has brought the record of the proceedings of the trial into this court for review.

The testimony on the part of plaintiff tended to show that her son procured liquors at defendant’s place of business at various times from May, 1906, to July 8, 1907, some of it after defendant had been notified by his parents not to sell him liquor and after he had been informed by them that the young man was an infant. Some of this he paid for, some of it was furnished to him at the bar, but was not, it appears, sold to him.

The attorney for the plaintiff presented among others the following request to charge:

“In this case, if the plaintiff has established a sale or giving or furnishing of intoxicating liquors to said minor at any time within the period complained of, by the defendant or any of his barkeepers or employés, then plaintiff is entitled to recover at least the sum above named [$50], and she is so entitled to recover if only one such sale is established by the evidence and whether defendant personally knew of such sale or not.”

The court instructed the jury in part as follows:

“There are two facts in this case which the plaintiff must establish by this fair preponderance of the evidence to enable her to recover: First, that Orr was a minor; and, second, that the defendant made sales of intoxicating liquors to him. When I say ‘ defendant’ in this connection, I mean not that he himself personally made these sales, but that he made them either himself or by his agents or servants or bartenders, because in this action he is responsible for the actual damages which the plaintiff sustained, provided the sales were made by his bartenders. If you should find that the plaintiff has established the fact of sales by the defendant to her minor son, then the statute gives her $50 as the minimum amount of a verdict. In other words, if you find from the evidence that these sales were made, then you must return a verdict in favor of the plaintiff for at least $50.”

In no portion of the charge did the court refer to furnishing or giving liquors, but the word “sales” was the word employed in each case in this connection. That in employing the word “ sales ” and in declining to employ the other words, viz., “furnishing or giving,” an error was committed, was urged upon the court in the motion for a new trial, and is the ground for an assignment of error argued at length in this court. It is noticeable that in many of the requests to charge preferred upon the part of plaintiff the word “sales’’only is employed. It appears that having stated to the jury the claims of the parties, and having in so stating the claims employed the word sales only, the court said to counsel:

“ Do I state the case with sufficient clearness, do you think ?
“Mr. Geib: I think so.
“Mr. Newnham: I think so.
“The Court: I always ask this so that, if I omit anything under the law, attention may be called to it. There is not a waiver of any legal right by asking this, except that I want the jury to understand the charge of the court and give you this opportunity.”

In denying the motion for a new trial, the learned judge says that, if the attention of the court had been called to the omission to use the words “furnishing” and “giving,” the error would have been corrected, and that he was satisfied that the failure to employ those words did not prejudice the plaintiff. It is not disputed that the request to charge above set out correctly states the law. No one can read the record without being strongly impressed that plaintiff’s son procured liquor at defendant’s place of, business. It is true that the reputation of the son for truth and veracity was attacked, and was shown by several witnesses to be bad. His general character was assailed, and the testimony introduced on the part of defendant tended strongly to discredit all testimony given by the son in behalf of the plaintiff. It had, however, little, if any, bearing or effect upon that given by some other witnesses for the plaintiff, who testified positively to the fact that the young man was furnished with liquors at defendant’s hotel. If no other error appeared, we should be inclined to hold counsel for plaintiff responsible for what appears to be a mere inadvertence on the part of the court in the use of words. We are impressed, however, in view of the matters now to be referred to, that the jury may have been governed by the precise words employed by the court.

It was brought to the attention of the jury by the defendant that there was and had been another saloon in the village in a building owned by the husband of the plaintiff, and that her husband was one of the sureties upon the liquor bond of the men who conducted the saloon; that the husband was addicted to the use of liquor; that another son of plaintiff had some connection as bartender or otherwise with this saloon and also with the defendant’s saloon; and that the minor son had at different times procured liquor at this other place of business.

After plaintiff’s counsel had passed the jury for cause and counsel for the defendant had proceeded to examine them, the following took place:

May it please the court and gentlemen of the jury: In order to perhaps refresh the recollection of some of you, you might have read something about some of the circumstances, I will state that Mr. Carrel, the defendant here, is the man that keeps the hotel in the village of Caledonia ; that some time about a year ago there was another saloon there; that there was trouble at Caledonia in regard to granting a license to this other saloon, and an ordinance was made—
“Mr. Ceib (interrupting): I will interpose an objection to the statement of counsel. The matter that is being stated by counsel is something that is incompetent in the trial of this case, and irrelevant to the issue here altogether.
“The Court: I did not notice. I presume counsel in this preliminary opening statement will be careful not to go outside.
‘ ‘ Mr. Newnham: It is only to bring the attention of the jury to something which they may perhaps have brought.
The Court: I don’t see how that can assist the jury, any answer to that question.
Mr. Newnham: It might bring to their mind a recollection of some of the circumstances which will be up in this case.
The Court: I think I would keep myself within the facts here.”

Later, during the examination of Juror John Alger, by Mr. Newnham, the following occurred:

“Q. Mr. Alger, you reside in the city ?
“A. Yes, sir.
“Q. Your business is grocer?
“A. Yes, sir.
“Q. Did you hear the statement of what this case was about ?
“A. Yes, sir.
“Q. Now, I ask you whether you have read anything in the papers regarding the trouble about granting another saloon license there ?
“A. Not that I know of.
Mr. Geib: I take an exception to these remarks.
“ The Court: You may take an exception. I think this question is proper to find out his knowledge as to the local situation. I do not think it will prejudice the issue. (Exception by Mr. Geib.) ”

Upon cross-examination of the young man, Orr, and in answer to an objection made by counsel for the plaintiff, counsel for defendant made the following statement:

“I think there will be circumstances which will show that the father is interested in this case before we get through.”

And, having made it appear that one of the men who kept the saloon in the place owned by the witness’ father was named Frey, the following occurred:

“Q. Now, your father was on Mr. Frey’s bond there as a saloon keeper, was he not ? * * *
Q. Now, did you know of an effort being made there by the village authorities to prevent the opening of the saloon or the maintaining of the saloon in your father’s building at one time ?
“Mr. Geib: I object to that as immaterial, irrelevant, and incompetent. It don’t make any difference. It has no bearing. [Question read.]
‘ ‘ The Court: Objection sustained.
Mr. Maher: I think, your honor, if I may be permitted to say something, that this is a matter of some importance, and that it is really the motive in this suit. And it seems to me that on cross-examination we would have a right to go into it.
“Mr. Geib: If your honor please—
The Court: I will hear Mr. Maher first.
“Mr. Maher: We expect to discredit the testimony of this witness on every material point, and this matter is, as I understand it, the motive for the bringing of this suit.
“The Court: I cannot at the present moment see the relevancy even upon that theory.
“Mr. Maher: Well, the relevancy would, perhaps, appear in this way. While Mr. Carrel was not taking an active part in that matter, yet it was imputed to him that he was trying to carry out that purpose. The village authorities there, if I may be permitted to state my position, the village authorities there undertook by ordinance to restrict the saloon district.
"Mr. Geib: Just a moment, if you will let me interrupt for a moment. I object to statements of this kind being made here in the presence of the jury, and ask that if this question is to be discussed at any length, and these statements to be made, that this jury is to be dismissed, and we settle this matter.
"The Court: Counsel will be careful not to transgress the rule in stating this language. I do not think it will embarrass the jury. (Exception by Mr. Geib.) ”

Plaintiff’s husband, being called as a witness, was asked, on cross-examination, among other things:

"Q. How long did this man who bought out Mr. Frey continue to operate a saloon there in that building ?
"Mr. Geib: I object as immaterial, irrelevant, and incompetent.
"The Court: Answer. (Exception by Mr. Geib.)
"A. Well, he quit some time in April. He quit before the 1st of May.
"Q. He quit before the 1st of May. Was there something done by the village authorities there to prevent the operation of a saloon there in your building ?
"Mr. Geib: I object as immaterial, irrelevant, and incompetent.
"The Court: You may answer by ‘ Yes’ or ‘No.’
(Exception by Mr. Geib.)
"A. Yes.
"Q. When was that ?
' "A. That was about the time that Mr. Poff quit. * * *
"Q. Is there a saloon running in your building there now in Caledonia village ?
"A. Yes, sir.
"Q. You are on the bond of the man that keeps the saloon there ?
"Mr. Geib: I object as immaterial, incompetent, and irrelevant.
The Court: You may answer.
"A. Yes, sir.”

The defendant, called as a witness in his own behalf, stated that, when he went to Caledonia, there was another . saloon in the village run by Frank Frey. The examination then continued as follows:

“Q. For how long a time did that saloon run, Mr. Carrel ?
“Mr. Geib: I object as immaterial, irrelevant, and incompetent. * * *
The Court: You may answer.
“A. Why, he ran the first year, one year, while I was in business there.
“Q. A year ago you obtained another license for the business of the ensuing year, did you ?
“A. Yes, sir.
“Q. At that time was there an application made to carry on business at the other saloon ?
“Mr. Geib: I object as immaterial, irrelevant, and incompetent.
“ The Court: Objection sustained.
“Q. Was a license refused that saloon by the village board ?
“A. It was refused; yes.
“Mr. Geib: I object as immaterial and irrelevant.
“The Court: The objection is sustained. The answer may be stricken out.
“Q. Was that saloon the one that was conducted in Liebler’s building at Caledonia ?
Mr. Geib: I object on the same ground.
“Mr. Newnham: I think it is material. It shows the animus of this prosecution.
The Court: The objection is sustained.
“Q. Do you know whether there was a saloon district made in Caledonia whereby this other saloon was put outside of the district ?
'c Mr. Geib: I object to that as leading, and as incompetent, irrelevant, and immaterial.
The Court: Now, I think that this would be a proper defense, providing you connect Mrs. Liebler with it in any way. I think you may state in what way you expect to connect her with it. * * * The objection is sustained.”

No attempt was made to connect the plaintiff with the matter, whatever it was, to which these repeated statements refer, except to prove by her that the family derived revenue from the rental of the building occupied by the other saloon. It does not appear that defendant was responsible for any action of the village authorities which affected the tenants of plaintiff’s husband. When the rulings of the court are considered, it is evident that defendant relies upon something besides evidence to support the conclusion which is stated in his brief as follows:

‘ ‘ The case is simply one which was brought by the plaintiff because the business of conducting a saloon in the building of her husband was interfered with, thereby depriving the family of certain rents which went to the support of the plaintiff, and incidentally it is claimed that the defendant, as he owned the hotel and the other place of business, was responsible for it. The whole animus of the case was to get even with the defendant and the evidence conclusively shows it.”

If, in the opinion of counsel, the questions asked and the statements made by counsel lead to this conclusion, it may be assumed that the jury .were in like manner affected.

Plaintiff claimed damages for injury to her feelings, and for no other loss or injury. That she was entitled to recover $50 damages if liquor was sold or furnished to her son by defendant or his agents, is not denied. To this point, at least, her motive in bringing her suit would be immaterial. In proceeding to determine whether a greater sum should be awarded, the jury would be governed necessarily by evidence tending to prove, and to disprove, the fact that her feelings had been outraged by the conduct of defendant. We are not prepared to say that the defendant might not show in mitigation of damages, in excess of $50, that the plaintiff had conspired with persons competing with him for an opportunity to do business in a particular community at whose places the minor habitually procured liquor, to harass him. See Cramer v. Danielson, 99 Mich. 531. But, if a defendant desires to pursue such a course, he should enter upon it openly, tendering the issue to the plaintiff and accepting the consequences of defeat. No such issue was tendered, either by questions propounded or by offers of testimony. The rulings excluding the testimony sought to be elicited were right and were to have been expected. We are impressed that the rulings did not avert the mischief which the suggestions of counsel were calculated to produce. Nothing was said upon the subject in the charge.

Testimony showing the drinking habits of the husband of the plaintiff was wholly irrelevant. In view of admissions made by counsel for the plaintiff, we are not called upon to discuss the point. It was entirely immaterial to the issue that plaintiff’s husband rented a building for saloon purposes and was surety upon a liquor dealer’s bond. There was no testimony tending to prove the assent of the plaintiff to his dealings or her sympathy with the business of selling intoxicating liquors. This is an adversary proceeding to which he is not a party. It will not be presumed that the plaintiff is insensible to the effects of liquor upon her children because her husband supports the business of selling liquor. The court, over the objection of plaintiff, permitted the introduction of testimony of prior sales and of sales during the period when it is claimed the defendant was selling liquor to the minor made by others than defendant. Without setting out the testimony and without considering the exceptions in detail, it is sufficient to say it is competent for defendant to prove that the minor was in the habit of becoming intoxicated prior to the time when it is claimed he furnished him liquor. Bailey v. Briggs, 143 Mich. 303. Whether such testimony would tend to mitigate the damages in a particular case would depend upon the other circumstances disclosed. It is easily conceivable that it might have an opposed tendency in cases where the liquor seller had been given warning by the parent. We are of opinion, also, that, when the plaintiff proves specific acts of intoxication and the defendant denies having made any sales, it is competent to prove that the intoxication was, in fact, caused by liquor furnished by another. But neither as a defense to the action, nor for the purpose of dividing with another the liability imposed by the statute, may prior or contemporaneous sales be considered.

It is not likely tbat other matters discussed in the briefs will arise upon a new trial.

For the errors pointed out, the judgment is reversed, and a new trial granted.

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


author: McAlvay, J.

text:
    ATTORNEY GENERAL, ex rel. ALLIS-CHALMERS CO., v. PUBLIC LIGHTING COMMISSION OF CITY OF DETROIT.
    Municipal Corporations — Contracts — Competitive Bids — Injunction.
    Under the charter of a municipal corporation, all contracts for public improvements, if the expense should exceed $200, were required to be let to the lowest responsible bidder, with adequate security. The defendant advertised for bids, and three sealed proposals were received, one from two companies jointly. After the bids were opened, a committee was appointed to investigate the merits of the articles to be furnished and of the bidders. One of the joint bidders thereupon submitted a proposal to the committee which was later adopted by the defendant. Held, that defendant acted beyond the scope of its authority, in that the ar ''■eptance of the proposal was contrary to the express provisioi of the charter above outlined, and was not a competitive bid. A bill filed in the name of the attorney general, on the relation of one of the competing bidders, was a proper proceeding to determine the question, and the only one by which any action could be taken.
    Appeal from Wayne; Brooke, J.
    Submitted November 10, 1908.
    (Docket No. 142.)
    Decided December 21, 1908.

      Bill by John E. Bird, attorney general, on the relation of the Allis-Chalmers Company, against the public lighting commission of the city of Detroit to enjoin the performance of a contract. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Brennan, Donnelly & Van De Mark (John J. Speed, of counsel), for complainant.

      Bichard I. Lawson (P. J. M■ Hally, of counsel), for defendant.
   McAlvay, J.

Complainant appeals from a decree dismissing the bill filed by him, on the relation of the Allis-Chalmers Company,, for the purpose of declaring the acceptance of the proposal of the Westinghouse Machine Company to furnish and install an electrical generating plant for defendant illegal and void, and for an injunction restraining defendant from entering into any contract pursuant thereto. Defendant advertised for sealed proposals “for the installation of an electrical generating plant, in accordance with specifications on file in the office of the commission.” The advertisement and specifications were general. No particular style or make of machine was called for. It was required that proposals should state the amount of money allowed for old machinery displaced by the new plant. It is admitted that these proposals were solicited in the usual and ordinary way provided by the city charter. This provision is as follows:

“No contract for the purchase of any real estate, or for the construction of any public building, sewer, paving, graveling, planking, macadamizing, or for the construction of any public work whatever, or for any work to be done, or for purchasing or furnishing any materials, printing or supplies for said corporation, if the purchase of said real estate, or the expense of such construction, repairs, work, printing, materials or supplies shall exceed two hundred dollars, shall be let or entered into except to and with the lowest responsible bidder, with adequate security.” Detroit Charter (1904), chap. 11, § 9.

All of the facts in the case are stated in the bill of complaint and exhibits, the answer, and the proceedings of the commission. No dispute arises upon the facts, and the only question is whether the commission exceeded its authority in accepting the proposition of the Westinghouse Company as hereinafter detailed. .

The facts concerning the proposals solicited under the notice given appear to be that three sealed proposals were received — a joint proposition from the Westinghouse Electric Manufacturing Company and 'the Westinghouse Machine Company, one from the Western Electric Company, and one from the Allis-Chalmers Company. The record does not give the proposition of the Western Electric Company. The joint proposals of the Westinghouse Companies were as follows:

1-2,000 K. W. 1,200 r. p. m. steam turbine unit with condenser and auxiliaries _ ____________________$60,000
If Lablanc condenser is installed in lieu of barometric condenser, price.------------------.’--------- 59,000
1-2,000 IC W. 1,800 r. p. m. steam turbine with auxiliaries and condenser--------------------------- 54,000
If Lablanc condenser is used the price will be______ 53,000
The offer for old materials, paragraph 86 and paragraph 24 of specifications........................ 1,000

The proposal by the Allis-Chalmers Company:

1-2,000 K. W. steam turbine unit 1,800 r. p. m. with condenser and auxiliaries........................ 53,475
For old materials referred to in paragraph 86 and paragraph 24 ................................... 1,800

The Allis-Chalmers Company was the lowest bidder. These sealed proposals were submitted July 8, 1908, according to advertised notice. It is apparent from what appears from a transcript of the record of the proceedings of the commission that, after the sealed proposals were opened, a committee was appointed to investigate the merits of the machines and of the bidders; that later, and on August 10th following, a proposition was submitted to the extension and supplies committee of the commission by the Westinghouse Machine Company, in which it offered to furnish a 2,000 K. W. turbo unit 1,200 r. p. m. machine and a barometric condenser for the sum of $53,000. The report of the committee and the action of the commission on the proposition of August 10th appears from the following minutes of the proceedings of the commission;

4 4A report was submitted by the extension and supplies; committee on their investigation of the relative merits of the Westinghouse Machine Company’s turbine and that of the Allis-Chalmers Company in which they recommended that the contract for the 2,000 K. W. turbine se>t be awarded to the Allis-Chalmers Company for the sum of $53,475.
“Commissioners Hetherington and Lynn opposed the awarding of the contract to the Allis-Chalmers Company on the ground that the Westinghouse Machine Company’s turbine was the best machine.
44 Commissioners Kales, Sheehy, the President and' General Superintendent Mistersky, who visited the cities of Milwaukee, Wis., Chicago, 111., Scranton, Pa., and Pittsburg, Pa., for the purpose of seeing the turbine of both companies in operation, particularly that of the Allis-Chalmers Company, as the commission have had a Westinghouse Machine Company’s turbine in the plant for the past two years, stated that they had seen the Allis-Chalmers turbines in operation in each of the first three named cities, and from what they had seen and the information obtained the machines were giving good satisfaction, but they all agreed that everything being equal they would prefer the slow speed machine.
“A supplemental proposition, which was submitted to the extensions and supplies committee by the Westinghouse Machine Company on August 10th, was placed before the meeting, in which they offer to substitute a 1,200 r. p. m. machine and a barometric condenser at the price named for the 1,800 r. p. m. machine and the Lablanc condenser, which was $53,000.
‘‘After some further discussion on the subject, Commissioner Hetherington moved, supported by Commissioner Lynn, that the Public Lighting Commission of the City of Detroit, Mich., enter into a contract with the Westinghouse Machine Company of Pittsburg, Pa., for a 2,000 K. W. turbo unit, 1,200 r. p. m. barometric condenser for $53,000, which motion was adopted on roll call as follows:
“Yeas: Commissioners Blain, Hetherington, Lynn and the President.
“Nays: Commissioners Kales and Sheehy.”

The entire brief and argument of the defendant assumes that the proceedings of the commission were regular, and that the selection made was from the bids regularly before it in the exercise of a lawful discretion.

As we view the case, the question before us to determine is not whether the commission selected a low speed machine, or determined the lowest responsible bidder, nor whether it lawfully under certain circumstances may so select and determine, but whether the Westinghouse Machine Company’s proposition to furnish and install a certain machine for $53,000 was ever regularly and lawfully before the commission, and whether its action in accepting such proposition was legal. The issue is not one between adverse litigants to determine their respective rights in a given controversy. The claim is that a body corporate has undertaken and' is doing something it is not authorized to do under the law. The proceeding is the proper one to determine the question, and the only one by which any action could be taken. The public represented by the proper officer is the real complainant before the court. If the proposal accepted by the commission was ever properly before it, it must have been under the notice which invited competition, according to the provision of the charter we have quoted. It is not claimed that the proposal accepted was included in the sealed proposals submitted and opened, but that it was a supplemental proposition to a committee of the commission on August 10, 1908. If it could be conceded that this proposal was in fact a supplemental proposition modifying a bid submitted under the notice given, defendant’s argument amounts to a contention that a bidder may, after the bids are all opened and have been under consideration, reduce his bid, as in this case, to the amount of $7,000, and such proposition may be acted upon and accepted as within the requirements of law. We are furnished with no authorities sustaining such a proposition. We quote briefly from an authority which holds the contrary doctrine :

“It would entirely destroy all healthy competition and frustrate all the advantages derivable from receiving proposals upon public advertisement, if one of the competitors could be permitted, after the bids were opened, to alter his own bid to suit the case, so as to make it appear just below the others, and to have it presented as lower than it really was, even after alteration, for the purpose of getting the contract. * * * It would vitiate the whole system of competitive bidding, and lead to the grossest abuse, collusion, and overreaching of municipalities and others in like situation, if a favored competitor might, after all the bids were opened, all perhaps too high, and his the highest among them, secure the contract by altering his own bid to range just below the lowest of his rivals.” Dickinson v. City of Poughkeepsie, 75 N. Y. 65.

The fact appears that the proposition accepted was the individual proposition of the Westinghouse Machine Company and the contract sought to be declared illegal is a contract to be made with this company. There was no individual proposal from this corporation submitted among the sealed proposals before the commission. The proposal submitted was by the Westinghouse companies jointly. The proposal accepted was for the first time submitted privately to a committee of the commission 30 days after the sealed proposals had been received and opened. The action of the commission in accepting the proposal of the Westinghouse Machine Company of August 10th was in effect a rejection of all proposals received under the advertised submission. The proposition accepted was never before the commission as provided by charter. The conclusion must follow that it was a private contract prohibited by the charter. Having arrived at this conclusion, it is unnecessary to discuss whether these bids submitted under the notice were competitive bids, and other questions which are presented by the briefs and arguments of counsel. In view of the statement in the answer that defendant “disregarded all proposals made by the alleged competitors and selected the machinery that was best adapted to the wants and necessities of the public lighting commission,’’from which a fair inference may be drawn, and in fact has been drawn.by counsel for complainant that the charter requiring advertisement for bids had no application to cases of machinery, materials, or property of which the seller has a monopoly, and which the authorities consider the best obtainable and in such cases purchases may be made at private sale.

In the case at bar the record does not show any monopoly and the authorities have by advertising for and receiving bids given their practical construction of the law. Speaking of similar statutory provisions, it has been well said:

“The object of all such provisions is to prevent favoritism, corruption, extravagance, and improvidence in the. awarding of municipal contracts, and they should be so administered and construed as fairly and reasonably to accomplish such purpose.” 20 Am. & Eng. Enc. Law (2d Ed.), p. 1165, and notes.

In construing the section of the charter under consideration, this court held in Hobart v. City of Detroit, 17 Mich. 246, that its requirements applied to a contract for the purchase of a patented article. This decision was approved in Motz v. City of Detroit, 18 Mich. 515. The same rule was applied under similar statutory provision to the board of public works of the city of Detroit. Holmes v. Detroit Common Council, 120 Mich. 226 (45 L. R. A. 121). For citation of authorities where the rule laid down by this court has been followed, see Saunders v. Iowa City, 134 Iowa, 132 (9 L. R. A. [N. S.] 397). This purchase was one clearly within the provision of the charter requiring notice and sealed proposals. A departure by the court from the rule laid down in our earlier decisiona would be unwise. To hold the action of the commission in this case as lawful, even upon their own theory, would open the doors to all the undesirable results which the authorities hold the wise provisions of such legislation were intended to prevent.

The decree of the circuit court is reversed, and a decree will be entered declaring the action of the commission illegal and void, and a perpetual injunction will be granted as prayed. No costs are allowed either party.

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


author: Hooker, J.

text:
    McNITT v. HENDERSON.
    1. Evidence — Hearsay Evidence — Admissibility.
    In an action for breach of warranty, hearsay testimony was properly admitted for the sole purpose of showing when plaintiff learned and became satisfied he had been defrauded.
    2. Same — Res Gestas — Contracts—Rescission—Oeeer to Arbitrate.
    In such action, in attempting to prove a rescission of the contract, a statement by plaintiff that he had offered to submit the dispute to arbitration was part of the res gestee.
    3. Sales — Contracts — Rescission—Fraud — Delay — Question eor Jury.
    Where plaintiff rescinded a sale on the ground of defendant’s misrepresentations, the question of whether plaintiff delayed an unreasonable time after learning that he had been defrauded before electing to rescind the contract was properly submitted to the jury.
    Error to Van Burén; Des Voignes, J.
    Submitted November 11, 1908.
    (Docket No. 148.)
    Decided December 21, 1908.
    Assumpsit by Livera McNitt against Porter H. Henderson for breach of warranty. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Barnard & Lewis, for appellant.

      Charles M. Van Riper and Thomas J. Cavanaugh, for appellee.
   Hooker, J.

Plaintiff sued defendant in justice’s court for the price paid by him to the defendant for a quantity of beans upon the theory that he hád rescinded the contract for fraud and deceit. Defendant appealed to the ' circuit court, where a judgment for the plaintiff for $20.59 was rendered. Defendant is here by writ of error. The substance of plaintiff’s claim is that he wanted some red kidney beans to plant, and so told the defendant; also that he would not know red kidney beans if he saw them; that defendant said that these were red kidney beans, and plaintiff, believing him, paid for and took them away. His wife told him that they were not red kidney beans, and he inquired elsewhere, and was informed that they were not red kidney beans, after which he sought to have defendant take them back and refund his money, but was every time refused, and finally took the beans to him and demanded his money some weeks or months after the purchase. Defendant claims that he did not say that the beans were red kidney beans, but that they were dark red kidney beans, but the question was left to the jury, who evidently believed that he said that they were red kidney beans, if there is any reason for saying that a “dark red kidney bean” is not a “red kidney bean.” There was evidence that they were not red kidney beans, and defendant himself testified that the beans he let plaintiff have were “all kinds and all varieties pretty much,” although he stated that he knew the variety that the plaintiff wanted, red kidney beans, and that he wanted them to plant.

It being thus conceded by the defendant, that the beans were not red kidney beans, the claim that plaintiff was permitted to prove that fact by hearsay testimony becomes unimportant. Such testimony was admitted for the sole purpose of showing when the plaintiff learned and became satisfied that he had been defrauded, and was admissible for that purpose. In attempting to prove a rescission, plaintiff stated his offer to arbitrate. That was a part of the res gestee to prove rescission.

Several errors are assigned upon the charge and refusal to give requests. We have examined all, but think it necessary to discuss but one, viz., the refusal to direct a verdict for defendant. The production of the beans at defendant’s house was some little time after the discovery that they were not red kidney beans, during which time plaintiff was asking to return the beans and defendant refusing to accept them, or otherwise adjust the matter, but the jury said that plaintiff did not delay an unreasonable time after he ascertained that he had been defrauded. We are of the opinion that this was a proper question for the jury, and that the charge was unobjectionable.

We find no error, and the judgment is affirmed.

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


text:
    HICKMAN v. CHANEY.
    1. Vendor and Purchaser — Specific Performance — Contracts —Forfeiture.
    On a bill for the specific performance .of a land contract, where it appears that the contract was subject to forfeiture by reason of default in payments, and defendants led complainants to believe that they would waive the forfeiture and deed upon payment of the amount due, they cannot avoid performance after complainants had acquired the vendee interest in the contract and tendered the amount due thereon.
    3.Same — Contracts—Assignments—Identification—Consideration.
    Where cértain assignments of a land contract express all that is necessary to transfer the assignors’ rights, they are none the less valid for want of dates and an expression of consideration; since all of the parties thereto are made defendants and none of them denies the sufficiency of the assignments or the validity of complainants’ title.
    3. Same — Contracts—Parol Contracts — Evidence—Statute of Frauds.
    On a bill for the specific performance of a land contraot, evidence examined, and held, that the agreement to convey on the payment of a certain sum after complainants should acquire the vendee interest, did not rest in parol so as to be void under the statute of frauds.
    4. Specific Performance — Contracts—Amount Due — Tender— S uffioiencv — Interest.
    On a bill for the specific performance of a land contract which had been declared forfeited for default in payments, where complainants had tendered an insufficient amount to cover the amount due at the time it was tendered, they should be charged with interest up to the date of the decree.
    5. Pleading — Cross-Bill — Failure to Answer — Default — Rule.
    On a bill for specific performance, defendants filed an answer in the nature of a cross-bill, and complainants did not file a formal answer to the allegations therein, and defendants caused complainants’ default to be entered. The allegations of the cross-bill were practically no more than denials of the allegations of the bill. Held, that the cause having been heard upon proofs on all disputed questions, this court, in order to do substantial justice and avoid doing violence to the rule and settled practice under it, will enter an order nunc pro tunc setting aside said default.
    Appeal from Kalkaska; Chittenden, J.
    Submitted November 11, 1908.
    (Docket No. 155.)
    Decided December 21, 1908.
    Bill by Elmer E. Hickman and Charles E. Neff against Delno Chaney, William E. Chaney, and others, for the specific performance of a land contract. From a decree for complaina7its, defendants appeal.
    Modified and affirmed.

      Ernest G. Smith, for complainants.

      Chauncey G. Jenks, for defendants..
   Hooker, J.

The evidence in this case shows:

(1) That on March 22, 1905, Delno Chaney and George E. Pray contracted in writing to sell to Robert Bell six 40-acre parcels of land for $400.

(2) Subsequently Bell assigned his right and title to said contract to Samuel Bricker by a writing stating as much upon the back of the original contract.

(8) On July 29, 1907, by a writing upon the contract, said Bricker assigned all of his right, title, and interest in and to said contract and the land therein described to the complainants.

(4) On November 18, 1907, the foregoing instruments were recorded in the office of the proper register of deeds.

(5) On December 11, 1905, a contract was made between Samuel Bricker and Judd Tenney and Robert Sipes by which Bricker agreed to sell and Tenney and Sipes agreed to buy subject to said contract, the land mentioned for $600, and Bricker thereby “sold his interest in and to the same ” to them, agreeing that upon payment he (Bricker) would execute and deliver to them a good and sufficient warranty deed of the premises, etc.

(6) Bywriting indorsed thereon, dated September 22, 1906, said Tenney assigned all of his interest in said contract as to a portion of said land to Sipes.

(7) By a similar writing indorsed thereon, dated July 27, 1907, Sipes assigned all his interest in said contract to complainants.

(8) On June 11, 1906, Tenney and Sipes made a contract with Flanagan and Burns to sell and convey to them all of said land, except the portion described in the assignment from Tenney to Sipes, by a contract similar to that given by Bricker to Tenney and Sipes.

(9) Subsequently, and on July 27, 1907, Tenney and Sipes assigned to complainants by writing upon said contract all of their interest in said lands.

(10) Burns and Flanagan by writing dated April 1, 1907, assigned to Samuel Lambert all their right and title to a contract made between them as parties of the second part, and Judson Tenney and Robert Sipes as parties of the first part.

(11) By a writing not dated, Samuel Lambert assigned all his right and title to the within contract to the complainants, giving a description of the premises.

(12) At some time after Chaney and Pray made the contract first mentioned, Pray sold and transferred his interest in the lands described therein to William E. Chaney.

From the foregoing it appears that at the time the suit was tried complainants had succeeded to all outstanding rights under defendants’ contract, so far as the instruments mentioned were adequate to convey them.

Before purchasing the various interests mentioned, one of the complainants saw William Chaney at Torch Lake, Mich., for the purpose of ascertaining whether it would be prudent for them to purchase the same. He was informed that there was about $35 overdue upon the contract, but he was encouraged to make such purchase, and given to understand that defendants would consider his proposition to pay at once the full contract price remaining unpaid. He sought to ascertain the amount due, and was promised that defendant William Chaney would ascertain as soon as he got home and write him. This was in July. Chaney did not do this. Complainants wrote him on August 1st as follows:

“Warsaw, Indiana, August 1, 1907.
“William E. Chaney,
“Kalkaska, Mich.
Dear Sir: Kindly state the least amount you will accept for the transfer of your contract and warranty deed to the land in Wilson Township *sold by you to Samuel Bricker. Also abstract showing clear title to the same. Please state full amount due on contract also full amount required to pay off your claim. You will remember we saw you a few days ago at which time you said that a sum less than the full amount would be accepted if we desired to pay it before the time provided in the contract. This will help us to decide on a deal with the other parties, and, in that case, we may pay you the cash for your claim. Let us hear from you by return mail and oblige,
“ Yours respectfully,
“Hickman & Neff.”

Defendant’s answer was:

“Rapid City, Aug. 7, 1907.
“Hickman & Neff,
“Warsaw, Indiana.
“ Gentlemen: I have your letter of August 1, 1907, asking me the least amount which I will accept for the transfer of contract and warranty deed to the land in Wilson township, sold to me by Samuel Bricker. Will say in answer that my contracts and paper, etc., are in safety deposit box at Kalkaska and being at the lake where you met me, it will be inconvenient to answer your letter fully until I have examined our contract. I, however, expect to be in Kalkaska within the next few days, at which time I will examine same, and let you know the least amount we will take.
“Yours truly,
“William E. Chaney.”

September 10th complainants wrote:

“Warsaw, Indiana, September 10th, 1907.
“ Mr. W. E. Chaney,
“Kalkaska, Michigan.
“Dear Sir: We wrote to you on August 1st, stating our Mr. Hickman had seen you, and that you stated you would give us some reduction on the interest if we would take up the Bricker contract and take the deed. You wrote us you would be in Kalkaska in a few days, and would let us know. Your letter was dated August 7th, and as yet we have heard nothing from you, and as the time is near for another payment, we would like to know what you will do before that time so that we can make our arrangements accordingly. If the discount will justify us to do so, we prefer to clean it up, and, as you stated you would give us a discount if we would so do we would like to know what you wish to make it and we will act accordingly, or trade it as it is. Thanking you for an early reply, we remain,
“ Yours truly,
“Hickman & Neee,
“Per C. E. Neee.”

To this letter no answer was made. Mr. Neff then went to Kalkaska and saw Chaney. Subsequently, and on October 24th, complainants again wrote :

“Warsaw, Indiana, October 24, 1907.
“Mr. W. E. Chaney,
“ Kalkaska, Michigan.
“Dear Sir: When our Mr. Neff had a conference with you about a month ago you stated you would have the deed to that land made out the following week and send it to the Kosciusko bank of this city where we were to pay $238.00 for the same being the amount due on contracts that we hold for the land. We have been disappointed in not receiving the deeds as agreed upon. We would like to hear from you, as we wish to pay the amount due on contracts, or pay preferably the amount we agreed upon and get our deed. Thanking you in advance for a reply, we remain,
“ Yours truly,
“Hickman & Neff,
“Per. C. E. Neee.”

On November 5th they received the following by mail:

“ To Messrs. Hickman & Neee,
“Warsaw, Indiana.
“Please to take notice that a certain land contract made on the 22d day of March, 1905, wherein and whereby Delno Chaney and George E. Pray agreed to sell to one Robert Bell, for the consideration of four hundred dollars upon certain terms of payment therein stipulated and agreed upon, the following described lands situated in the township of Wilson county of Kalkaska and State of Michigan, to wit the south half of the northwest quarter; and the north half of the northeast quarter; and the southwest quarter of the northeast quarter of section sixteen of town twenty-seven north, range eight west (excepting and reserving therein certain railroad rights therein fully specified), and in which contract we understand you have some interest derived from the said Robert Bell, is hereby declared forfeited by reason of default in the payments therein specified and agreed upon and of default in other terms and agreements therein contained on the part of said Robert Bell. And you are hereby further notified that the undersigned are the sole owners of the title to said lands and that they now, and hereafter, do and will claim full right of possession of said lands as though said contract had not been made and will regard and treat any further interference with said land or the timber thereon, by the said Bell, or his assigns, or any person or persons claiming by, through or under him, as a trespass.
“ Dated this 25th day of October 1907.
“William E. Chaney.
“Delno Chaney.”

Defendants’ first refusal to make the deed was on or about October 26th, when they offered to pay back $191. On November 17th complainants tendered $240 and subsequently $250, which sum was paid into court. We think it unnecessary to state at length the oral testimony. Suffice it to say that, as the letters indicate, the defendant William Chaney placed obstacles in the way which prevented immediate payment of arrearages and prompt payment of all unpaid amounts provided for in the contract, at the same time concealing the evident intention of ultimately declaring the contract forfeited.

The defendants’ brief contains a statement of the questions which their counsel consider to be involved. They are as follows:

“ (1) A charge of fraud and misrepresentation on the part of the defendants, put in issue by a positive denial in the answer, the alleged fraud and misrepresentation consisting in certain promises to execute a deed and failure to do so, etc.
“ (2) The complainants’ ownership of the vendee interest in the contract which they, claiming as vendees, seek to have specifically enforced against the vendors. The defendants contend (a) that the complainants never as a matter of fact or law acquired the vendee interest in the contract in question, this proposition involving the question of the validity of three purported assignments; and (b ) that, even had the complainants been shown to be the owners of such vendee interest, the defendants had no knowledge nor means of knowledge of such fact, and were, under the circumstances disclosed by the evidence, justified in refusing to execute a deed to the complainants, this proposition involving the question of the good or bad faith of complainants in neglecting and refusing to produce any evidence to defendants that they were the owners of such vendee interest while demanding a deed of the lands.
“ (3, incidentally) The question of an oral agreement to accept a certain sum as the amount remaining unpaid on a contract, and to execute a deed therefor, and the validity of such an agreement, if made, under the statute of frauds.
“ (4) The legal right of a vendee in default to demand a deed on tender after notice of forfeiture.
“(5) The question of affirmative relief on a showing made under an answer in the nature of a cross-bill to which no answer was filed, and default for not answering, entered.”

We shall therefore discuss no others.

1. Promise to deed. The defendants contend that the testimony does not show a promise to deed the premises on payment. We are convinced that at the first interview between the parties complainants were justified in believing that defendants would waive a forfeiture and deed upon a subsequent payment of the purchase price after complainants should have purchased the contract, and it was arranged that defendants should forward a proper deed to a bank in Indiana to be delivered on payment of $238. Their conduct indicates that they soon after determined (if they had not already done so) to avoid performance of their contract if they could, and purposely concealed such design until complainants had made their purchase.

2. Complainants’ title. Counsel contend that defendants were under no obligation to make a deed to any one but Bell until they had satisfactory evidence that the parties demanding the deed were the sole and bona fide owners of such vendee interest. They say that defendants did not have satisfactory evidence, and that the evidence fails to show that complainants were such owners. We will dismiss the first part of the proposition with the remark that we are convinced that defendants did not want such evidence. This was not given as a reason during the negotiations, and we believe they had no doubt of complainants’ title, as evidenced by their offer to pay them $191 of the consideration received. Moreover, they could easily have ascertained what has been proved had they made an effort in good faith to ascertain what title complainants had. But they contend that complainants did not show title. They attack the writing of Flanagan and Burns and that of Lambert — the former that it does not identify the contract assigned to them; the latter, that it purported to be attached to a contract assigned when it was not. We insert copies of these two instruments:

“Pressey’s Camp, 4-1-07.
“This is to certify that I have for value received sold all my right and title to contract made and entered into between Judson Tenney, Robert Sipes parties of the first part, and Samuel Flanagan and Fred Burns parties of the second part to Samuel Lambert.
“Fred Burns.
“Sam Flanagan.”
“For the sum of fifty-four dollars ($54.00) I hereby assign all my right and .title in the within contract to Elmer E. Hickman and Charles E. Neff of Kosciusko county, Indiana. The same being the north half (i) and the southwest quarter of the northeast quarter, and the northwest quarter of the southeast quarter of section sixteen (16) township twenty-seven (27) north, range eight (8) west.
[Signed] “Sam Lambert.”

We have no hesitancy in saying that the former sufficiently identifies the contract referred to, while, if the latter does not upon its face, it is made apparent when considered in the light afforded by the former assignment, and the contract that it describes. In addition to the above, counsel attack the assignment made by Bell. We insert it:

“I hereby assign my rites and title to the above contract to Samuel Bricker.
“Robert E. Bell.”

The attack is made to rest on the want of proof of consideration. A somewhat lengthy argument is made to show that it is void under the statute of frauds upon the theory that—

“An assignment of a land contract * * * is a contract for the transfer or sale of an interest in lands, which must be in writing, and must leave nothing to rest in parol.”

Ergo the consideration must be expressed. A similar claim is made regarding the Elanagan and Burns assignment and their assignment to Lambert. We think it unnecessary to enter upon an elaborate discussion of these questions. We may sufficiently answer them by saying that these assignments express all that is necessary, to transfer the assignors’ rights under the contracts that they severally describe, and they are none the less valid for want of dates. As to consideration, the assignor had a right to assign without consideration if he chose to do so, and the defendants in this cause have no right to raise the question. All of the persons hereinbefore named are parties to the bill, and none of them deny the sufficiency of these instruments or 'the validity Of complainants’ title.

3. The oral agreement. This has been alluded to. We will add that the complainants’ rights do not rest on a claim that they were entitled to a deed on payment of #238, or that defendants’ oral promise to deed on any terms constituted a new contract. It is enough to say that this and other evidence is sufficient to justify the refusal to enforce a forfeiture.

4. Complainants’ rights after notice of forfeiture. Counsel say:

“We are unable to find any authorities which hold or indicate that a vendee may, after notice of forfeiture, as a matter of right, tender the amount due and demand a deed. It is undoubtedly true that a court of equity may permit him to do this under certain circumstances where the equities are clearly with him, and upon an equitable basis; but he cannot as a matter of right discharge himself from all responsibility by tendering or paying simple interest, and thereby become entitled to a deed where the other party has declared the contract forfeited for the default.”

The above concession is sufficient justification under the proofs in this case for refusing to enforce a forfeiture if there is no other obstacle. But there is such. Under the testimony in the case, it should be said that the default of the assignors of complainants was waived, and that the latter have not been in default since, as they made every reasonable effort to pay arrearages, and have been prevented by the inequitable conduct of the defendants. We do not, however, agree in the holding of the learned circuit judge that defendants should be required to deed on payment of $238. The complainants’ bill avers that they are and have been at all times ready to pay the amount actually due, and, while two tenders were made, neither was quite large enough to pay the amount due at the respective times when they were made. Therefore they should pay interest up to the date of the decree below, which was April 9, 1908, and which apparently amounts approximately to the sum of $240.61, with interest thereon from March 22, 1905. The exact amount can be determined on the settling of decree if counsel cannot agree upon it.

5. Complainants’ failure to answer defendants’ cross-complaint. Counsel for defendants attempted to avail themselves of the rule permitting a defendant the benefits of a cross-action upon filing a proper answer. They prayed for the following affirmative relief, viz.:

(1) That the contract with Bell be declared forfeited and void.
(2) That the rightful owners of the vendee interest be fixed’ to whom defendants may safely repay such portion of the contract price of said lands as the court shall decree to be equitable and just for them to repay.
(3) That the amount of the contract price heretofore paid be determined, and that the amount thereof which defendants shall repay upon cancellation of said contracts shall be fixed, and those entitled to the same determined.

Complainants filed a replication as follows:

“ The replication of the complainants to the answers of the defendants Delno Chaney, William E. Chaney, and George E. Pray. The said complainants say that notwithstanding the answer of the said defendants they are entitled to the relief prayed for in the bill of complaint.”

Subsequently counsel for defendants Chaney caused complainants’ default to be entered for want of an answer. It is now contended that under Chancery Rule 11 the allegations of the answer in the nature of a cross-bill must be taken as true. See Coach v. Kent Circuit Judge, 97 Mich. 565; Messenger v. Peter, 129 Mich. 95. Practically the allegations of the answer amount to little more than a denial of the allegations, and, while counsel for complainants might prudently have filed a formal answer, the failure to do so is not necessarily fatal to his claim, and, the cause having been heard upon proofs on all disputed questions, we will by an order nunc pro tunc set aside said default, and treat the cross-claims as answered by a denial in all essential particulars. This' will do substantial justice, and avoid any possibility of doing violence to the rule or settled practice under it.

Except as modified in the manner above indicated, the decree of the learned circuit judge will be affirmed by a decree entered here. The complainants will recover costs. 3 Comp. Laws, § 11256; Chancery Rule 22, and note.

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


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    DAVIS COLLIERY CO. v. CHARLEVOIX SUGAR CO.
    1. Judges — Disqualification—Affinity—Void Orders — Orders Nunc Pro Tuno.
    Under section 1109, 1 Comp. Laws, no judge in any court can sit as such in any case in which he is a party or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. And where a judge, although ignorant of the existence of the disability, does sit in a case where he is thus disqualified, the order or decree made is void; and said order cannot be validated by the entry of an order nunc pro tunc by a judge who had been called to sit in the case after the disqualification had-been discovered.
    2. Corporations — Receivers—'Waiver of Objection.
    In an action of assumpsit against a corporation, an objection was raised that a receiver had been appointed and should have been made a party to the suit. Plaintiff acquiesced in the view of the court that such action should have been taken, and the case passed the term. Subsequently the case was noticed for hearing, the trial had, and judgment obtained. Held, it not appearing that plaintiff was then aware of the disqualification of the judge who appointed the receiver, that, on a bill in aid of execution, he was not estopped' to attack the jurisdiction of the court, nor was the right waived.
    Appeal from Charlevoix; Shepherd, J., presiding.
    Submitted November 11, 1908.
    (Docket No. 151.)
    Decided December 21, 1908.
    Bill in aid of execution by the Davis Colliery Company against the Charlevoix Sugar Company and others. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      H. W. Kane, for complainant.

      Lisle Shanahan, for defendants.
   Montgomery, J.

This is a bill filed in aid of execution and as a judgment creditors’ bill. The facts upon which the bill is based, briefly stated, are as follows: Complainant was a creditor of the Charlevoix Sugar Company, and on the 21st of September, 1904, commenced a suit in the circuit court for the county of Charlevoix against the company, and at the March term, 1905, recovered a judgment for $406.95 and costs of $21.69. On the 1st of December, 1904, Alva L. Coulter, one of the above-named defendants, who was a stockholder in the Charlevoix Sugar Company, filed a bill in the circuit court for the county of Charlevoix, in chancery, against the sugar company, the purpose of which was to secure the appointment of a receiver of the sugar company. This case came on to be heard before Hon. Frederick W. Mayne, circuit judge, and on the 3d of December, 1904, Judge Mayne appointed Samuel A. Marting receiver with full power to take possession of the property, etc. Mr. Marting proceeded to qualify as receiver. The plant, including the real estate appurtenant thereto, was subsequently sold under decrees of the circuit court for the county of Charlevoix, in chancery, in mechanics’ lien suits to satisfy the claims represented thereby. The circuit court commissioner being disqualified, the court appointed Samuel A. Marting as special commissioner to make the sale under the decree. Upon such sale, after satisfying the decrees in full, there, was a surplus of $1,477.48, which amount was by subsequent order of the court, on petition of the receiver, transferred from and paid by the special commissioner to himself as receiver. On the 19th of April, 1905, execution was issued on the judgment obtained by the complainant in its assumpsit suit, and, upon return nulla bona, ,an alias execution, on the 21st of June, 1905, was issued and placed in the hands of the same officer, and a levy was made upon certain real estate of the Charlevoix Sugar Company and a certificate of levy duly filed ‘in the office of the register of deeds for Charlevoix county. On the 3d of July, the bill in this case was filed. On the 18th of July, 1905, Judge Shepherd, who was then sitting in the Charlevoix circuit court, entered an order nunc pro tunc as of the date of December 3, 1904, which was a reaffirmance of the order made by Judge Mayne December 3, 1904, appointing a receiver. On the 5th of July, the receiver presented a petition to the court, Judge Shepherd presiding, asking for leave to sell the personal property of the Charlevoix Sugar Company, and on the same date an order was issued granting said petition. No notice of the pendency of the petition nor of any proceedings thereunder was given to complainant in this cause. Upon learning thereof, the complainant immediately filed a petition in the case of Coulter v. Charlevoix Sugar Company, asking to have the order authorizing the sale of the personal property set aside, and alleging that it appeared specially for that purpose and no other. Said petition came on to be heard on the 18th of July before Judge Shepherd, and an order was made affirming his order of July 5, 1905, authorizing the receiver to sell the personal property, but requiring him to set aside $500 from the proceeds of said sale as a special fund out of which to pay any decree which might be rendered in this suit against the defendants and in favor of the complainant. Upon final hearing of the present case before Hon. Frank Shepherd as presiding judge, the bill of complaint was dismissed and a final decree entered in favor of the defendants. From this decree, the complainant appeals.

It is alleged in the bill, and appears by the testimony? that the wife of Judge Mayne, who at the time he made the first order appointing a receiver was living, was a full sister of Flora E. Lewis, who was also living, and, at the time of making the order appointing the receiver, the owner, as administratrix, of 100 shares of the stock of the Charlevoix Sugar Company. The evidence shows that Flora E. Lewis was administratrix of the estate of her deceased husband, Fremont E. Lewis, and that the sole issue of the marriage of Flora E. Lewis and her husband was one child. The contention of the complainant is that Judge Mayne, by reason of his relationship with Flora E. Lewis, a stockholder in the defendant company, was disqualified from acting as circuit judge, and that his order appointing a receiver was absolutely void. It is further contended that the bill filed in Coulter v. Charlevoix Sugar Company on its face failed to show a case justifying the appointment of a receiver. The bill prays that the order appointing a receiver be declared void, and that a satisfaction of the judgment be had out of the fund reserved by the order of the court, and that, if that be not sufficient, the additional amount of the decree be paid out of the hands of Mr. Marting. It should be stated, in justice to Judge Mayne, that at the time of making the order appointing a receiver he had no knowledge of the fact that any stock of the defendant company stood in the name of Flora E. Lewis, or that she was in any way interested in the company, and upon learning the fact he declined to act in any proceeding against the company. Under section 1109, 1 Comp. Laws, no judge in any court can sit as such in any case in which he is a party or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. There can be no doubt that the relationship to a stockholder of a party is equally as disqualifying as a relationship to a natural party.' See Martin v. Insurance Co., 139 Mich. 148. Nor is there any doubt that the relationship existing between Judge Mayne and the sister of his wife is within the prohibited degree of affinity which would exclude Judge Mayne’s sitting as a juror in a case in which Mrs. Lewis was concerned. See Horton v. Howard, 79 Mich. 642; Bliss v. Caille Brothers Co., 149 Mich. 601. And where a judge does inadvertently sit in a case where he is thus disqualified, the order or decree made is void. Horton v. Howard, supra.

It is contended, however, that inasmuch as it appears that Mrs. Lewis was a stockholder only in her representative capacity as administratrix, a different rule should obtain. There is force in the complainant’s contention that the mere addition to her name of the term “ administratrix ” might be considered as merely descriptive of the person. But not resting our decision upon this, inasmuch as it is made to appear that Mrs. Lewis was administratrix of her husband’s estate, and as the record clearly indicates that it was in that capacity that she held this stock, it is also evident that, as there was but one child surviving, she, as widow, would be entitled to own one-half of all the personal property of the estate. This would make her an interested party.

It is contended that the nunc pro tunc order entered by Judge Shepherd July 5, 1905, cured the jurisdictional defect. We think no such force can be given to the order. The rights of the complainant had fully vested before Judge Shepherd assumed to make the order affirming the order of Judge Mayne appointing a receiver. Before that order was made, the present bill had been filed, and the void order attacked. The order was made without notice to the complainant, and its rights could not thus be defeated. Whitwell & Hoover v. Emory, 3 Mich. 84; Eslow v. Township of Albion, 32 Mich. 193, cited and approved in McDonald v. Board of Sup’rs of Alcona Co., 91 Mich. 459.

It is next contended that the complainant has waived its right to attack the jurisdiction of the court in appointing a receiver. The only ground, apparently, upon which this contention rests, is' that when the case at law of the present complainant against the sugar company came on for hearing at the December term, 1904, an objection was raised that a receiver had been appointed for defendant sugar company, and that the receiver should have been made a party to the suit, and that the Davis Colliery Company acquiesced in the view of the court that such action should have been taken, and the case passed the term. The plaintiff in the case, however, subsequently noticed the case for hearing in the regular way, and the case was tried and judgment obtained. We can discover in this action nothing in the nature of an estoppel or waiver. It does not appear that the complainant was then aware of the relationship of Judge Mayne to Mrs. Lewis, and he simply acquiesced in an order made by the court and could not well have done anything else.

We think the complainant has shown itself entitled to the relief prayed, and should recover the amount of its judgment and costs out of the funds in the hands of the defendants.

The decree will be reversed, and a decree entered for complainant, with costs of both courts.

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


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    JACOBS v. UNION TRUST CO.
    Taxation — Payment—Who Liable — Vendor and Purchaser— Repayment.
    As between a vendor and vendee of- land, in the absence of express statute provision, a lien upon the land for taxes does not exist until the amount thereof is ascertained and has become a charge which may be discharged by payment; and where petitioner purchased land after it had been listed for taxes and before the tax was payable, he is not entitled to repayment of the amount of the tax from the'vendor, although, as between the vendor and the public authorities, the tax was a debt from the time of listing the land for taxation.
    Appeal from Wayne; Donovan, J.
    Submitted November 12, 1908.
    (Docket No. 58.)
    Decided December 21, 1908.
    Petition by Abraham Jacobs against the Union Trust Company, receiver of the City Savings Bank, for the repayment of money paid for taxes on certain real- estate. From an order dismissing the petition, petitioner appeals.
    Affirmed.

      Bernard B. Selling, for petitioner.

      Bowen, Douglas, Whiting & Murfin, for defendant.
   Ostrander, J.

Petitioner, Jacobs, purchased land in the city of Detroit, at public sale, of the receiver of the City Savings Bank, April 27, 1903. He advised the receiver that he had been informed the city taxes for the current year should be paid by the vendor. The matter was left open, without prejudice to either party, and later, the vendor refusing to pay them, the taxes were paid by petitioner. He is seeking in this proceeding to recover the money so paid out. The single question presented is whether, at the time of the sale, the taxes were an obligation which the vendor, as between itself and the vendee, was bound to discharge.

It appears by the charter of the city of Detroit that assessments, viz., the listing and valuation of property for purposes of taxation, are made as of April 1st. Having completed a review and correction of assessments, it is the duty of the board of assessors to sign, and, on the third Tuesday in April, to return the rolls to the common council. The common council considers, and may correct errors in, the rolls, and hears and decides appeals from the action of the board of assessors. After the rolls have been corrected and confirmed by the common council, it is the duty of the board of assessors to apportion, ratably —the statute uses the term “assess” — the amount of all taxes authorized to be collected. When completed, the tax rolls are delivered to the comptroller and by him to the receiver of taxes. The particular roll was transmitted to the common council April 21st, and was confirmed May 7th. There was therefore no apportionment of taxes, no ascertainable money charge upon persons or upon property before May 7th. The tax roll was received by the receiver of taxes July 1st, upon and after which date the taxes were due and payable. The charter does not specify the time when taxes shall become a lien. It does contain the following provisions:

“All city taxes shall become a debt against the owner from the time of the listing of property for assessment by the board of assessors, and shall become due and payable forthwith upon receipt of the tax roll by the receiver of taxes. * * *
“ All city taxes upon personal property shall be and remain a lien thereon until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien. All city taxes upon personal property and real estate and special assessments thereon, in addition to being a lien upon the property assessed, shall be and remain a debt against the owner of the property, or his estate after his death, until the same are paid, and such debt shall be unaffected by any statute of limitations.” Detroit Charter (1904), chap. 10, §§ 9, 10.

It was distinctly held in Eaton v. Chesebrough, 82 Mich. 214, that, under the charter provisions then in force, taxes upon land, as between vendor and vendee, became a lien upon the land at the time the roll came to the hands of the receiver of taxes, which was then, as now, on July 1st. It is urged, however, that, because of changes made in 1901 to the charter provisions, the rule thus laid down is inapplicable. When that case was decided, the charter (chapter 10, § 9) provided that “upon receipt of the tax roll by the receiver of taxes, as hereinbefore provided, the taxes determined shall become a debt due and payable to the city.” The argument advanced is that since by the amendment to the charter taxes become a debt of the owner from the time of the listing of property for assessment, although the debt is not due and payable until the roll comes to the receiver of taxes, it should now be held that the lien attaches as of April 1st, the date of listing property for assessment. The argument is supposed to be aided by an interpretation of the language of section 10 of chapter 10, hereinbefore set out, which provision was also added to the charter in 1901. The argument would be conclusive if it is assumed that a tax upon land becomes a lien upon the land, as between the vendor and vendee thereof, at the time when, as between the public and the landowner, it becomes a debt of the landowner; but if we assume, as I think we must, in the absence of express statute provisions, that no tax is a lien (an incumbrance) upon land, as between the vendor and vendee thereof, until, at least, it has become an ascertained charge, from which the land may be relieved by payment, the argument is wholly inconclusive.

It is and has always been fundamental, in our revenue system, that a lien upon real estate exists for the purpose of collecting taxes levied thereon. Change of ownership does not affect it. If a particular day is named in the statute, from which a tax' is deemed to be a lien upon land, such day, it has been held, will, in the absence of stipulation, determine, as between vendor and vendee, who should pay the tax; but although all real estate is subject to this lien, and although the proceeding to determine the sum for which the lien shall attach begins with the listing of property, there is, and, in the nature of things, there can be, no charge upon the property, no incumbrance, no enforceable lien, until the proportionate share of the public burden has been officially determined. Whether the legislature might make the amount of taxes thereafter to be ascertained a lien upon land from the time it was listed for taxation is a question not presented. We are satisfied it has not attempted to do this wholly unnecessary thing in providing, in a law relating wholly to the collection of the public revenue, that such taxes shall be a personal debt of the owner from the time his property is listed by the assessors.

The views here expressed are supported by the reasoning of the opinions in Harrington v. Hilliard, 27 Mich. 271, and Lindsay v. Eastwood, 72 Mich. 336. We are of opinion that, as between a vendor and vendee of land, in the absence o£ express statute provision, a lien upon the land for unpaid taxes does not exist until the amount thereof is ascertained and has become a charge which may be discharged by payment.

The case at bar is ruled by Eaton v. Chesebrough, supra, and the determination of the court below is affirmed, with costs.

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