author: Moore, J. Mr. Justice Campbell,

text:
    SLEIGHT v. SWANSON.
    Justices of the Peace—Jurisdiction—Nonresident Parties.
    A nonresident of the State may bring an action against another nonresident before a justice of the peace of any city or township in this State where the defendant may be found; 1 Comp. Laws, §§ 707, 708, prescribing generally where actions cognizable by a justice shall be brought, not operating to exclude the jurisdiction in such a case.
    Error to Gogebic; Haire, J.
    Submitted March 7, 1901.
    Decided July 10, 1901.

      Assumpsit by Richard Sleight and others against Samuel Swanson on a promissory note. From a judgment for defendant, plaintiffs bring error.
    Reversed.

      Charles E. Miller, for appellants.'

      Julius J. Patelc, for appellee.
   Moore, J.

The statement of facts is taken from the brief of counsel for appellants:

“ The plaintiffs in this case, who are all nonresidents of the State of Michigan, came into justice’s court in the city of Ironwood, Michigan, and commenced the above-entitled suit against Samuel Swanson, the defendant, who was also a nonresident of the State of Michigan, by short summons, and at the same time instituted garnishment proceedings against the Hayes Mining Company, as garnishee of said Samuel Swanson; tho Hayes Mining Company being then a corporation doing business at Ironwood, Michigan. The garnishee defendant disclosed an indebtedness due from it to tho principal defendant, Swanson.

‘ ‘ The summons against Swanson was personally served at the city of Ironwood, in the State of Michigan; and on the return day thereof the defendant, Swanson, appeared specially before tho justice and interposed a plea in abatement, alleging that the justice had no jurisdiction in the case, for the reason that neither the plaintiffs nor the defendant were residents of the township where the justice resided, and for the reason that both the plaintiffs and the defendant were residents and citizens of the State of Wisconsin and other States, and that none of the parties to the action were residents of the State of Michigan.

“ The plaintiffs demurred to the plea in abatement, and the demurrer was sustained and plea in abatement overruled by the justice. The plaintiffs filed a declaration and proceeded to judgment in the case. The defendant thereupon appealed said cause to the circuit court by special appeal, which special appeal having been brought to a hearing before the circuit court, the judgment of the justice was overruled, the plea in abatement sustained, and the plaintiffs’ cause dismissed. This writ of error was sued out to review the action of the circuit judge in rendering judgment in favor of the defendant under the circumstances above detailed.

“The only question, then, to be considered, is whether nonresidents of the State of Michigan, as plaintiffs, may sue a nonresident of the State of Michigan, as defendant, in any justice’s court of this State.”

It is claimed by defendant that justices’ courts are courts of limited and inferior jurisdiction, and are confined to the exact limits of jurisdiction prescribed by the statute; that under the limitations fixed by sections 707, 708, 1 Comp. Laws, justices’ courts may not take jurisdiction of cases where none of the parties thereto are residents of this State.

The precise question here involved has never been before this court. A like question arose in relation to the circuit courts under section 10216, 3 Comp. Laws, which'reads, “All actions upon contracts shall be tried in the county where one of the parties shall • reside at the time of com-

mencing such action.” Haywood v. Johnson, 41 Mich. 598 (2 N. W. 926 ), held that, as .between parties who were residents of the State, this statute was imperative, and that no suit could be brought in a circuit court in any county of the State except in the county where either the plaintiff or defendant resided. In the case of Atkins v. Borstler, 46 Mich. 552 (9 N. W. 850), the question as to whether or not this statute applied in the case of a party who was a nonresident of the State was involved. In that case 'the plaintiff, who resided in Mecosta county, sued the defendants, who resided in another State, on contract; the suit being brought in Kent, county, and service made there. The defendants objected to the jurisdiction of the court, relying upon section 10216. The court below sustained the plea to the jurisdiction, and the plaintiff brought error, and the court said:

“ If the section applies to nonresidents of the State, the decision below was correct. But, if correct, it follows that there are many transitory actions on contract, as well as in tort, where such persons can always evade the justice of this State by keeping away from counties where their creditors reside. The Constitution gives jurisdiction, without any exception, in such cases, to the circuit courts. It would not be competent for the legislature to take it away. And if the statute in question would have any such effect according to its ordinary meaning, we are compelled to choose between holding it to that extent void, hr, construing it according to what was, no doubt, its real intent, as not applicable here.

“We have no doubt the section in question was intended to be a beneficial section, in the direction of saving defendants from vexatious suits in places remote from their homes. It accordingly saved them the privilege of being sued at home, or in the home county of the plaintiff, who was regarded as entitled also to some consideration. It is evident that in so legislating the lawmakers had no idea of granting a privilege to nonresidents against being sued at all. The natural inference is that those who were entitled to be sued in the forum of their residence are persons whose residence contains one of the courts of the State, so that suits may be brought under our laws. The language of the statute only applies to trials of actions brought under our laws; and, if any case arises under our laws, it would be absurd to hold that the legislature meant to say it should not be tried at all. Those who claim the privilege must point out a Michigan forum where they can be found for service of process. The statute applies to no others.”

In Newland v. Wayne Circuit Judge, 85 Mich. 151 (48 N. W. 544), both parties were nonresidents of the State. Suit was brought in Wayne county, and a resident of the State of Michigan was garnished as being 'indebted to the principal defendants. There was no service of the summons on the principal defendants. A motion was made to dismiss the writ of garnishment on the ground that the plaintiffs and defendants in the principal suit were all nonresidents of the State of Michigan, and the court held that, notwithstanding the statute (section 10216,3 Comp. Laws),the court had jurisdiction of the case; and the court say:

The court must have jurisdiction of the parties to the principal suit, so that, as between them, a valid judgment could be rendered, as the rights between these parties must be adjudicated, at least to the extent of the claim made against the garnishee, before the court could enter judgment against the garnishee. There is no valid reason why the courts of this State may not acquire jurisdiction over persons and choses in action as well where both parties to the original action are nonresidents of the State as where the plaintiff in the original suit is a resident of the State. The plaintiff, a nonresident, comes into the State and submits himself to the jurisdiction. The statute points out the* mode of procedure to acquire jurisdiction over the defendant in the principal suit; not for the purpose of rendering a personal judgment against the nonresident defendant, but to subject the choses in action in the hands of the third party to the payment of the plaintiff’s demand.”

The doctrine in this case was reaffirmed in State Bank of Eldorado v. Maxson, 123 Mich. 250 (82 N. W. 31, 81 Am. St. Rep. 196).

In the case of Cofrode v. Wayne Circuit Judge, 79 Mich. 339 (44 N. W. 623, 7 L. R. A. 511), the parties came before the court and stipulated that the court might have jurisdiction to try the case without the issuing of process. The circuit judge, refused to hear the case, and application was made to the Supreme Court for mandamus to compel the hearing. In its opinion this court discusses the effect of section 10216, and holds that such statute applies only to residents, and cites the case of Atkins v. Borstler, supra. It was claimed that, if the jurisdiction was conferred by consent, it did not become obligatory upon the court to entertain jurisdiction; and this court said that the correctness of this position must depend upon the right of the plaintiff to seek redress in the courts of this State, and the court held that the right to bring suit in the courts of this State was a right secured by the United States Constitution, wherein it is declared that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.”

“ The right to bring suit in the several courts of this State having jurisdiction is a privilege of every citizen of this State. Especially is this true with reference to the enforcement of contracts. A citizen-of another State may come into this, and acquire and enjoy property. He may inherit and transmit property. He may enter into contracts, to the same extent that a citizen of this State can do * so, and in this his rights are guaranteed by the above provision of the Constitution; and I think that his right to bring suit in this State, in any case where a citizen of the State may, is also guaranteed and protected by this provision of the Constitution.”

Mr. Justice Campbell,

in his dissenting opinion, said:

“It is only when a defendant is not a resident of the State that he may be served where he can be found. This is a rule of necessity, and results from the doctrine that all persons temporarily in any county become subject to its jurisdiction, and, if they have no fixed residence, must be treated as commorant wherever they are found.”

Defendant relies upon sections 707, 708, 1 Comp. Laws, which read as follows:

“ (707) Every action commenced in such court shall be brought before some justice of the peace of the city or township where:

“'First, The plaintiffs or any of them reside; or

‘!Second, Where the defendants or any of them reside; or ■ “ Third, Before some justice of another township or city, in the same county, next adjoining the residence of the plaintiff or defendant, or one of the plaintiffs or defendants: Provided, however, that no justice of the peace of any of the townships in the county of Wayne shall have jurisdiction over any cause or proceeding where both parties to the same, or one or more of the plaintiffs and one or more of the defendants, reside in the city of Detroit at the time of the commencement of the proceeding or cause, nor in case where the original cause of action existed in favor of a plaintiff and against a defendant both residents of said city, and has been assigned to a nonresident of said city; or

“Fourth, Before some justice of a city in the same county formed from a township or townships next adjoining the residence of the plaintiff or defendant, or one of the plaintiffs or defendants: Provided, that nothing herein contained shall change or limit the jurisdiction of a justice of the peace where the same has been prescribed by the •charter of an incorporated city.

“ (708) But if a defendant shall have absconded from his residence, such action may be brought before any justice of the township or city in which such defendant or his property may be; and if the plaintiffs be all nonresidents of the county, or if the defendant be a nonresident of the county, then such action may be brought before any justice of the township or city where such plaintiffs or defendants, or either of them, may be.”

He also relies upon Hall v. Shank, 57 Mich. 36 (23 N. W. 478), where Justice Sherwood used the following language:

“ It is not competent, under 2 How. Stat. § 6819, for a plaintiff to sue a defendant in a justice’s court, where they are both residents of this State, in a county, where neither of them reside; but, where either is a nonresident of the county, suit may be brought before any justice in any township of the county where the other resides and may at the time happen to be, and the court has jurisdiction only in those cases in which the plaintiffs, or some one of them, or the defendants, or some one of them, are resident in the county where the suit was brought.”

The language used was not necessary to a determination of the case, but, if it was, it simply made the same rule-for justices’ courts established by Hayivood v. Johnson, supra, for circuit courts, where it was held that circuit courts did not obtain jurisdiction unless one of the parties was a resident of the county, where the parties to the litigation were residents of the State, and is not controlling in favor of the position of defendant.

New York has a statute reading almost precisely like sections 707, 708, 1 Comp. Laws. A very excellent authority, in commenting upon these provisions, uses the following language:

“The statute does not, m express terms, provide for a case in which both parties, plaintiff and defendant, are nonresidents.”

And he goes on to say:

“Were it not for the restrictions of the two sections which have been cited, a plaintiff would be authorized to commence an action in any town in the county, whether the defendants were residents of the county or not. * * * If both parties are nonresidents, the plaintiff’s right to sue in any town in the county is not .restricted, unless by the terms of the statute which declare that, in case the defendant is a nonresident, the action may be brought in any town in which 'he may be.

“The evident object of the statute was to provide, as far as possible, for the convenience of nonresident parties, whether plaintiffs or defendants. And when both are nonresidents, there is no reason why the convenience of one party should be consulted more than that of the other. And the reasonable rule would be that the action might be commenced in the town in which the plaintiff or the defendant might be at the time of commencing the action; since the general provisions of the law would allow an action in any town in the county, were there no restrictions, and that general rule ought to prevail in the absence of a statute expressly forbidding it.” 2 Wait, Law & Prac. 54.

In Miller v. Smith, 115 Mich. 427 (73 N. W. 418, 69 Am. St. Rep. 583), there is some discussion of the jurisdiction of justices’ courts. The following language is used:

“It is claimed on the part of the appellee that justices’ courts are of limited and inferior jurisdiction, and are confined strictly to the authority given them by the statute, and should be held to the exact limits of jurisdiction prescribed by the statute. Wight v. Warner, 1 Doug. (Mich.) 386; Clark v. Holmes, Id. 398; Spear v. Carter, 1 Mich. 19 (48 Am. Dec. 688); Shadbolt v. Bronson, 1 Mich. 89; Wall v. Trumbull, 16 Mich. 249; King v. Bates, 80 Mich. 367 (45 N. W. 147, 20 Am. St. Rep. 518). The cases in 1 Doug, and 1 Mich, were decided before section 1, art. 6, of the Constitution of 1850 was adopted, which reads:

“ ‘ The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace.’

“ Section 18 is as follows:

“ ‘In civil cases, justices of the peace shall have exclusive jurisdiction to the amount of $100, and concurrent jurisdiction to the amount of $300, which may be increased to $500, with such exceptions and restrictions as may be provided by law. They shall also have such criminal jurisdiction, and perform such duties, as shall be prescribed by the legislature.’

“Section 6814, 2 How. Stat., provides that a justice of the peace ‘shall have original jurisdiction of all civil actions wherein the debt or damages do not exceed the sum of $100.’

“Section 6817, 2 How. Stat., provides:

“ ‘Bach of said courts is hereby vested with all such powers, for the purpose of exercising jurisdiction conferred by this chapter, as are usual in courts of record, except the power of setting asido a verdict and arresting judgment thereon.’

“ These provisions were not contained in the Constitution prior to that date, so that those cases do not now control.”

If the contention of defendant is true, we have the anomalous position that, where all the parties are nonresidents, circuit courts have jurisdiction in those cases where enough is involved to give them jurisdiction, while no court has jurisdiction if the amount is so small that only justices of the peace have original jurisdiction. The statute ought not to be given a construction that shall produce such a result. All the reasons which impel the courts to hold that 3 Comp. Laws, § 10216, does not apply where all the parties are nonresidents, apply with equal force in construing sections 707, 708, 1 Comp. Laws.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    FERRIS v. NEVILLE.
    1. Will—What Constitutes.
    An instrument, executed with the formalities required in the case of a will, certifying that “this is good to F. for S800, as payment for care and attendance rendered by her to me in my last sickness; this §800 is to be collected out of my estate after my death, iiroviding, however, I die a bachelor,”—is a will, and not a mere acknowledgment of indebtedness, since it was not to take effect until the death of the subscriber, and was subject to be defeated by his marriage.
    2. Same—Execution—Instructions.
    The question whether a will was executed and witnessed as required by the statute, and as on its face it purported to be, held, to have been properly submitted to the jury.
    Error to Bay; Maxwell, J.
    Submitted March 8, 1901.
    Decided July 10, 1901.
    Rubie Eerris presented for probate an instrument claimed to be the last will and testament of Jacob E. Embody, deceased. The instrument was allowed in the probate court, and Albert D. Neville, as administrator of the estate of said deceased, and in his own right, appealed to the circuit. From a judgment for proponent, .contestant brings error.
    Affirmed.

      Porter & Hajfe'y (McDonell & Duffy, of counsel), for appellant.

      T. E. Webster (James VanKleeck, of counsel), for appellee.
   Long, J.

This is an appeal from an order of the probate court of Bay county admitting to probate a certain writing which is claimed to be the last will and testament of Jacob E. Embody, deceased, who died May 8, 1898. The paper reads as follows:

“State of Michigan,

County of Bay.

“To Whom It May Concern: This is good to Miss Rubie Ferris for eight hundred dollars, as payment for care and attendance rendered by her to me in my last sickness; this eight hundred dollars is to be collected out of my estate after my death, providing, however, I die a bachelor.

his

“ Jacob E. X Embody. [L. S.]

mark.

“ Signed and sealed in- presence of James Petterson.

“Edwin U. Hover.

“Dated at Lengsville, Bay county, Michigan, this 19th day of February, A. D. 1898.”

íhere is no question but that the deceased died a bachelor.

The cause was tried in the circuit court before a jury on appeal, and a judgment entered on a verdict finding the instrument above set forth to be the last will and testament of Jacob E. Embody, deceased. The administrator of the estate has appealed. His counsel say in their brief that but two questions are raised, to wit:

“1. Does this paper constitute a will, even if properly executed and witnessed ?

2. Did the court err in the admission and exclusion of testimony which was offered showing that the will was properly executed and witnessed according to the statute, and was that question of fact properly submitted to the jury ? ”

The proponent of the will called James Petterson as-a witness. He testified that he came to the house of one Mr. Ferris, at Lengsville, on February 19, 1898; that he saw the deceased, Jacob E. Embody, upstairs in the house, and talked with him awhile, when deceased tapped on the window and called Edwin Hover, the other witness to the will, who came up.; that the paper here claimed to be the will of Mr. Embody was then signed in his presence by Embody, and that he and Hover signed as witnesses to it at Mr. Embody’s request; that the witnesses both signed at the request of Embody, and in his presence, and in the presence of each other; that Hover wrote the words, “Dated at Lengsville, Bay county, Michigan, this 19th day of February, A. D. 1898,” at the request of Mr. Embody; that Embody then requested Hover to take the paper and keep it until he (testator) died or got better, and if he died-it was to be given to Mr. Ferris, and if he lived it was to be returned to deceased.

Edwin U. Hover, the other witness to the paper, was called, and testified that he had known Mr. Embody, the testator, about a year; that it was his signature to the will; and that the date looked like his handwriting, but that he was not positive it was his handwriting. He further testified that he signed the paper at his home, near Unionville, about a year after it was dated (that is, about the 6th or 7th of March, 1899 ); that Mr. Ferris brought the paper to him and asked him to sign it; that Ferris told him that he wrote the body of it, but that Embody died so suddenly they did not get it quite finished, and that he (Ferris) knew it was all right, and he (witness ) supposed it was all right, and signed it; that the other witness (Petterson) was not there, and Embody was not there. On his further examination the witness testified that, if he testified on the hearing in the probate court that he signed the paper in the presence of Petterson and at the request of Embody, it was false. He then stated:. “I lied in the probate court because I was under the influence of liquor. * * * I was somewhat under the influence •of liquor when I signed this paper.”

The proponent introduced testimony tending to show that, while Mr. Embody was still living, Mr. Hover, the ■above witness, had this paper in his possession; that he showed it to one Otto Bruce, and at Embody’s request read it over to Bruce; and that he showed it to Mr. Ferris’ son Fred, and let him read it, and said he was going to give it to Mr. Ferris. The judge of probate of Bay county was called as a witness, and testified that Hover was •called as a witness on the allowance of the will, and stated that he was passing the house where the deceased was sit that time, and that the deceased beckoned to him to come up; that he went into an upper room of the house, and there were three parties present (that is, the two subscribing witnesses and the deceased); that the deceased presented him a paper and asked him to witness it; that the name of the testator had been signed to the paper; and that he then and there'signed it at the request of the deceased. Other testimony was also given of like character. The witness Hover was recalled, and gave testimony tending to show that he never showed the paper to Fred Ferris or Otto Bruce.

Upon this and other testimony introduced in the case, the court charged the jury:

“ Now, I charge you explicitly that unless this will was signed at the time that Petterson says he signed it, in the presence of the testator and in the presence of the two witnesses, it is void, and you will find against the will. Unless that will was signed by the two witnesses in the presence of the testator and in the presence of each other, the will is void, it never took effect, it never became a, will; and if the testimony of the young man that it was carried down to Tuscola county long after its execution—If what the witness said was true, the will was never completed, because it must be completed during the lifetime of the testator.

“Now, that brings us'to the second question. If the will was signed in the presence of these two witnesses and in the presence of the testator, and at his request, the will is valid and effectual. There is a question of law as to whether the instrument is a will or not, and it is a close question. My first impression was, the same as my brother McDonell’s. I thought it was a mere promise or agreement to pay. A subsequent partial examination somewhat changed my views, and I charge you, as a. matter of law, that it is a will; that is, if it is proved to be properly executed. If it were a claim against the estate, it would come in for its share of the money with the other creditors, and might consume all the estate, and might be of value to the amount of the whole face of it, unless the debts exceed the whole value of the estate. But, as a will, it is subject to all the debts of the estate before the legatee gets anything, and no injustice would be done if it is-allowed as a will or claim, providing it is honest and just.

“ Now, in regard to the proof of this will: You have heard the testimony of Petterson. He was on the stand as a witness. You saw how he behaved, and heard what he had to say, and, no doubt, observed his method of giving his testimony. If you believe Mr. Petterson, you may find in favor of this will. But, before you can find in favor of the will, .you must find that both Petterson and Hover signed this will as witnesses at' the time that Petterson says he signed it. Now, in support of that view of the case, this may be said: The testimony of this boy was given before the probate court some time ago. There he testified substantially the same as Petterson testified, according to his own testimony and the testimony of Judge Wright. The events about which he spoke were more, recent in his recollection then than they are now, or will be at any later day than that date. I do not see in the case (it has not leaked out, at least) what inducement or temptation was held out to this boy to commit perjury at that time, or to make a forgery by signing the will as a‘ witness, because it is a forgery to attest a will that is false. Now, you will consider that in regard to his testimony. He was living up there in that neighborhood; he was well acquainted with, and near neighbor to, the parties interested; and his name appears upon that instrument, and he appeared before the probate court and testified to it. Now, so far there would seem nothing unusual about him, or the evidence that he gave, or the things that he did. If anybody else had done it, it would be a very natural thing to do. But he says that he swore falsely before the judge of probate; that he never witnessed the will until the day before th,e 8th of March last,—the 7th of March,—when Mr. Ferris and some one else came to him, down in Fairgrove, and told Mm that he knew that the will or paper contained the last wishes of Mr. Embody, which he assented to, and thought there was no harm in signing it. Now, it is possible that the boy was innocent in signing that document, and that he was imposed upon 'or induced to sign it. His testimony in regard to the liquor that he drank you may consider, but it is very dangerous-evidence for you to pay much attention to. He details exactly what happened immediately after that same time, and, so far as it casts a dark shadow on this transaction and seems to shed light on the other side, you will consider it with the utmost care, if you give it any credence whatever.

“He testifies that he signed it on the 7th of March. Judge Wright comes here and testifies that the paper was filed in his court on the 8th day of March, and that he saw it in the hands of Judge Webster two weeks, and maybe three weeks, before that day; and he says that, while he cannot swear positively it is, the same paper, he thinks it was. Now, if it was before Judge'Wright two or three weeks before the 8th day of March, it could not have been witnessed by this Hover on the 7th of March, and his testimony is false if that was so; and still you will consider it. Now, Hover himself, in answer to my questions, stated that the testimony that was given was false, that he was a cousin of one of the attorneys in the case, and that he advised him to keep out of the way of the officer who wanted to serve a subpoena upon him. My friend McDonell has stated that that was no offense under the law of Michigan,—to keep out of the way of an officer. If he had kept out of the way entirely,—got away before he was served with the subpoena,—it certainly would have left his own reputation a great deal better than it may be after this trial. But he admits that he swore falsely on a former occasion. He plastered himself over many times more by detailing his connection with the forgery of this will, if his version be true.

“Now, gentlemen, you can believe that testimony if you want to, or you can reject it totally, or you can believe any part of it you are a mind to, and reject the balance. You have the whole matter in your hands, and you ought to apply your best judgment to it. It is a general rule of law that, if a witness deliberately and intentionally and knowingly testifies falsely in regard to one part of a case, all his evidence in the case may be rejected by the jury, and in many cases ought to be, because the law does not trust even to the jury the task of picking out the truth from the false parts of the perjurer’s testimony.

“ Now,, in support of the will there is the boy Bruce, who said he saw this man Hover have it along at an early day; that it was given to the deceased; that he read it, and gave it back to him. Petterson said it was given to this young man for safe-keeping when the execution of the will was finished. The Ferris boy testified that he worked some days to pay up a debt of his father to Hover, and that he saw the will; that this man told him that, when he had worked out the debt, he was going to give it to his father. Now, these are confirmatory circumstances that you may consider, always bearing in mind that, to sustain this will, you have got to find that it was signed at the time Petterson signed it, in the presence of the deceased, at his request, and in the presence of each other. If you do not find that fact, you will find against the will. If you do find it, you will find in favor of the will. And it seems to me that that is the critical point in the case, and so far as the testimony tends to confirm that view of it, or tends to disaffirm that view, you ought to consider it carefully. If you find a verdict, it will either be that you find in favor of the will, or that you find against the will. Put it in those words, and the court will understand by that that you find that no will was executed or proved, or you will find that this will was executed.”

Section 9266, 3 Comp. Laws, provides:

“No will made within this State, except'"such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses.”

It is the contention of counsel for contestant that this paper does not constitute a will; that, if it was ever executed, it is nothing more than a duebill or an acknowledgment of a debt of $800 owing to Miss Ferris by the deceased. We cannot agree with this construction of the paper. It is a will, and not an acknowledgment of a debt. If it were a duebill or an acknowledgment of a debt, it could not have been defeated by the marriage of the testator. It was to take effect only at the death of the testator. It was said in Lautenschlager v. Lautenschlager, 80 Mich. 292 (45 N. W. 147):

“ The form of any instrument is of little consequence in determining whether it is a will or not. If it be executed with the formalities required by the statute, and if it is to operate only after the death of the maker, it is a will.”

Many cases are cited in that case in support of the above proposition, to which attention is called. Woerner, Adm’n, p. *61, and notes.

The jury found, under proper instructions, that it was the intention of Jacob E. Embody to will to Eubie Ferris the sum of $800, to be taken by her at his death, on condition that he died a bachelor; and we think the finding is supported by the evidence. We find no error in the record in the admission or rejection of evidence. The cause was fairly submitted to the jury.

The order of the court below must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    CHRISTOPHER v. HECHHEIMER.
    1. Contracts —Traveling Salesman—“Drawing Account”— Evidence.
    Where a contract with a traveling salesman provided that he should receive a certain commission on sales, and be allowed “a drawing account of $100 per month; traveling expenses and drawings to be deducted before payment of commission,” —parol evidence was admissible to show that, by a well-defined trade usage, the term “drawing account” meant a guaranty of commission.
    2. Same—Advances for Expenses.

      It seems that, such construction being established, moneys advanced for traveling expenses could not be charged against the drawing account.

      Error to Wayne; Carpenter, J.
    Submitted March 8, 1901.
    Decided July 10, 1901.

      Assumpsit by Martenus Christopher against Emanuel Hechheimer and another for salary as traveling salesman. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Clark, Durfee, Allor & Marston, for appellants.

      L. C. Stanley, for appellee.
   Moore, J.

The plaintiff is a traveling salesman. In May,-1897, he entered into the employ of defendants, who are manufacturers of clothing, to sell their goods. The contract was in writing, and continued for a year. It is the claim of the plaintiff that he entered upon his work for the second year under an agreement that the contract was to continue for a second year. He brought suit to recover $500, which he claimed was due him. Defendants deny that the contract was renewed at the end of the first year, and claim they had overpaid plaintiff, so that, instead of being in debt to him, he in fact owed them $1,650. The whole controversy arises over what construction shall be placed upon that portion of the contract reading as follows:

“And the said party of the first part covenants and agrees to pay unto the said party of the second part, for the same, the sum of lawful money of the United States as follows: The sum equal to seven per cent, commission on all sales shipped and accepted, with the further stipulation that a drawing account of one hundred dollars ($100 ) per month be allowed party of the second part. Traveling expenses and drawings to be deducted before payment of commission.”

And ..especially as to what is meant by a “drawing account” of $100 per month.

The case was tried before the judge without a jury. That portion of his findings of fact and law which is material is as follows:

“The amount of commissions on sales made by plaintiff, shipped and accepted by defendants before suit was commenced, amounted to $2,107. The amount of money advanced by them amounted to $3,758.25. Of this money §2,108.25 was advanced for traveling expenses, and was advanced from time to time for plaintiff’s traveling expenses, and was so used by him; and $1,650 was advanced upon the drawing account of plaintiff at the rate of $100 per month from May 15, 1897, to October 1, 1898.

“I find from the testimony introduced upon this trial that the term ‘drawing account’ has a definite and fixed meaning in the trade, and that it meant a guaranty of commissions, so that there is no obligation on the part of one drawing to repay the amount of the money drawn.

“ As a conclusion of law from the foregoing facts, I find that the plaintiff is entitled to a judgment for $500.”

The parties to the controversy introduced testimony as to what was meant by the term “drawing account.” It is a term which would not be understood by persons not familiar with the trade. It was proper to introduce testimony as to its meaning. The testimony was exceedingly conflicting. A number of witnesses on the part of the plaintiff gave testimony tending to show that, when used in such a contract as this, it had a definite and fixed meaning in the trade, and meant a guaranty of commissions up to $100 each month. Speaking for myself, I think this was the practical construction put upon the contract by the defendants themselves in their remittances to the plaintiff.

Judgment is affirmed.

The other Justices concurred.


text:
    GREGORY v. CITY OF ANN ARBOR.
    1. Highways—Dedication—Acceptance.
    A dedication of land for a public way, to be effectual, must be accepted by the public.
    2. Same—Municipal Corporations—Resolution op Council.
    Under a city charter providing that no resolution of the council shall be adopted except by a majority vote of the members elect, a resolution accepting a deed of land for a city street, which receives the affirmative votes of less than a majority of the council, does not constitute a valid acceptance.
    3. Same—Rights op Mortgagee.
    A deed of land for a city street, in which a mortgagee of the land does not join, confers no right upon the city as against the mortgagee.
    4. Same—Piling Plat—Withdrawal.
    A plat purporting to dedicate a city street 42 feet wide was filed, but was withdrawn before its acceptance, after which withdrawal a resolution declaring, a street 45 feet wide to be a necessity was passed by the council. Held, that the city acquired no rights by the filing of the x>lat.
    5. Municipal Corporations—Special Assessments—Notice op Review—Waiver.
    Where a landowner appears before the board of review in the matter of a special assessment, and objects to the proceedings on the merits, it is a waiver of any irregularity in the service of the notice to appear.
    6. Same—Certipioate op Assessor.
    An objection that the certificate of the assessor to a special assessment roll does not show the basis on which the assessment was made is without force when such certificate, taken in connection with the proceedings of the council, shows a full compliance with the charter requirements.
    7. Same—Misdescription op Property.
    The fact that property subject to a special assessment is . assessed by the description of a different proxierty is not ground for an objection by the owner of the latter that his property is twice assessed, where the owner of the first property has paid his assessment.

      Appeal from Washtenaw; Kinne, J.
    Submitted March 5, 1901.
    Decided July 10, 1901.
    Bill by Samuel R. Gregory and Jennie B. Gregory against the city of Ann Arbor and Leonhard Gruner to set aside a special assessment. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Randall & Jones, for complainants.

      E. B. Norris, for defendant city.

      Latorence & Butterfield, for defendant Gruner.
   Moore, J.

The learned trial judge filed a written opinion in this case, which states so clearly the questions involved that we insert it here:

“This is a bill filed to set aside an assessment of tax levied by the city to pay for the right of way incident to the opening of Catherine street between Division and State streets. The lands of complainants lie adjacent to Catherine street, on the north side thereof. This opening of Catherine street has a somewhat unusual history, and the case presented is not free from trouble and doubt.

“On March 7, 1898, Mrs. Maynard, whose lands extended, from Division street east nearly to State street, delivered to the city, for the purpose of a public highway, a deed of a strip pf land 39 feet wide, extending east along the entire length of her property. Although this deed was a gift, it contained two conditions:

“1. That the city should forthwith expend in the improvement of such proposed street not less than $200.

“2. Tf the city should at any time take proceedings to condemn any of her land on the north side thereof for the purpose of a street, then this deed should become null and void, and the land should revert to her, her heirs or assigns.

“It seems that the members of the council were in disagreement respecting the wisdom of accepting the deed. It was accepted by a vote of seven in the affirmative and six in the negative. On the 8th day of April following, at the request of Mrs. Maynard, the city reconveyed this strip of land to Mrs. Maynard. There is no evidence that the city ever complied with the first condition in said deed. I am of the opinion that the acceptance of this deed required a majority vote of all the members elect, and that therefore there was not a legal acceptance of such' deed. A casual glance might lead one to the conclusion that the city acted inadvisedly in relinquishing the right of way given by Mrs. Maynard. It must, however, be remembered that the deed of Mrs. Maynard conveyed a strip of land but 39 feet wide, lacking 8 rods of extending through to State street, and thus creating a mere cul-desac. It was very important to the public, and to those whose lands would adjoin the proposed street, that it should be opened to State street. The house and lot of Mrs. Whitlark lay directly in the path of this proposed street, and she held her premises at $4,500. This street, as opened by the city, has a width of 45 feet, and passes through the land of Mrs. Whitlark to State street, and without any contemplated expense to the city.

“ On April 16,1898, Mrs. Maynard conveyed all her land, except her homestead, to Leonhard ■ Gruner, who also acquired the property of Mrs. Whitlark, at a cost of some $4,000; On or about May 10, 1898, Mr. Gruner and Mrs. Maynard made a joint plat of the lands, and left the same with the register of deeds. By this plat a street 42 feet in width, and extending from Division street to State street, was opened and established. It, however, left a strip of their land 3 feet in width on the north side thereof, which was probably intended as a forcible suggestion that those persons whose lands adjoined the proposed street'on the north, and thus became of enhanced value, before obtaining access to this proposed street, should contribute their just share towards ■ the cost and expense of opening this street. Apparently it did not succeed, and Mr. Gruner withdrew the plat from the office of the register of deeds. After this street had been opened and established by the city, as hereinafter stated, this plat was revised, and returned to the register of deeds, showing a street 45 feet in width directly abutting the lands of the parties on the north side thereof, and conforming to the street as opened by the city.

“On October 17, 1898, a petition was presented to the council asking for the opening of this proposed street." The time and place were fixed by the council for the hearing of this petition. The affidavit of the marshal, showing service of notice of this hearing, is defective, but it appears that the complainants were represented at the meeting, and presented a written protest. Proceedings were thereupon taken by the city looking to the establishment of this street, and the assessment of the cost thereof upon the adjacent owners. Some serious questions appear in this case, but those which have not been urged by counsel, or were not raised by the pleadings, I shall not discuss. I am of the opinion that the proceedings of the city in the matter of opening and establishing this street should be sustained.

“An unfortunate error was made in the preparation of the tax roll. Although the lands of the complainants are correctly described, it appears that, in describing the land of Ellen Morse, her land has the same description as one of tho parcels of the complainants. It appears, however, that she took no advantage of the fact that the lands were erroneously described, but paid her assessment. It does not seem to me, therefore, that the complainants have any cause for complaint on this ground.

“Undoubtedly, to the complainants the large assessment upon the premises seems unreasonable, and it may operate as a great hardship to them, unless due consideration is given to the enhanced value of their lands. There are reasons why I should be glad to relieve them of this burden, but I have been unable to see my way to do it. Undoubtedly, the council have acted iii good faith in the proceedings, and have done what they believe to be just to all parties concerned, and for the welfare of the public.

“I think the bill of complaint should be dismissed, but, under all the circumstances of the case, without costs against the complainants.”

It is claimed the'action of Mrs. Maynard in March, 1898, amounted to a dedication of the street. Section 74 of the charter of the city, being Act No. 331 of the Local Acts of Michigan of 1889, aá amended, providés:

“No money shall be appropriated except by ordinance or resolution of the council; nor shall any resolution be passed or adopted except by a vote of the majority of all the members elect, except as herein otherwise provided.”

It appears from the charter that there are 15 members of the common council, and from the record that only seven members voted for the resolution accepting the deed, while six voted against it. In order to be valid, the acceptance required eight affirmative votes.

The record discloses that Mr. Gruner had a mortgage upon this land at this time, and did not join in the deed. The city, therefore, did not acquire any rights against him. 9 Am. &Eng. Enc. Law (2d Ed.), p. 29, and cases there cited.

■ It also appears that .the city did not forthwith expend in the improvement of this land $200, or any other sum. It has long been the law in this State that there must not only be an intent to dedicate the street to the public, but that there must be an acceptance of the dedication by the public. People v. Jones, 6 Mich. 183.

As to the plat made by Mr. Gruner and Mrs. Maynard in May, it provides for a street only 42 feet in width, and left a strip of land 3 feet wide north of the street, belonging to the persons who signed the plat.. Before the plat was accepted, before any resolution was passed declaring-the street a necessity, and before any copy of the plat was filed with the Secretary of State, the plat was withdrawn from the record, and the offer to dedicate was thereby revoked. At the time the petition of October 17, 1898, h> lay out the street was filed, there was no plat on file, nor was any plat on file when the resolution spoken of in appellants’ brief, declaring the street a public necessity, was passed. ' The plat was withdrawn in the summer of 1898, not long after it was filed. It was between the 25th of July and the 1st of August. The petition to open'the street upon which the tax rests was dated October 5, 1898, and appears in the proceedings of the council of October 17, 1898. The resolution declaring the street a public necessity was passed on October 17, 1898. The resolution declared the necessity to be for a street 45 feet wide, whereas the plat which complainants claim dedicated a public street shows a street only 42 feet wide. We do not think the public acquired any rights to the street because of this plat. Diamond Match Co. v. Village of Ontonagon, 72 Mich. 260 (40 N. W. 448).

It is claimed there was no proper notice served of the session of the board of review to consider the special assessment roll. The affidavit shows service upon S. R. Gregory, his wife, and his sister. S. R. Gregory, his wife, Jennie B., and his sister, Hannah, are the only persons interested in the property involved in this case. Both complainants appeared and objected in writing to the proceedings, not because of want of notice, but for other reasons. We think this would waive any irregularity, if there was any.

It is urged that the common council, instead of establishing a special assessment district itself, entered into a contract with Mr. Gruner, the practical effect of which was to allow him to establish the special, assessment district. There is nothing in the report of the committee, or in the action of the council, to indicate that the boundaries of the assessment district which the committee recommended, and which was adopted by the council, in any way entered into the agreement with Mr. Gruner.

It is said the proceedings are void because the certificate of the assessor does not show the basis upon which the assessment was made. We'cannot agree with the solicitors in this contention. The case comes within Davies v. City of Saginaw, 87 Mich. 439 (49 N. W. 667). See, also, Cuming v. City of Grand Rapids, 46 Mich. 150 (9 N. W. 141); Baisch v. City of Grand Rapids, 84 Mich. 666 (48 N. W. 176).

It is said one parcel of property was twice assessed, This is the land referred to in the opinion of the trial judge as belonging to Ellen Morse. We adopt his views in relation to this question.

The decree is affirmed, with costs of this court.

Montgomery, C. J., Hooker and Grant, JJ., concurred. Long, J., did not sit.


text:
    POLLOCK v. GERMAN FIRE-INSURANCE CO.

    1. Fire Insurance—Foreign Companies—Agency—Exchange Insurance — Removal oe Insured Property — Consent of Agent.
    Where an insurance agent, on being applied to for insurance, procured another agent to write a policy in one of his foreign companies, and thereafter delivered the policy to the insured and collected the premium, the insured supposing him to be the agent of the insurer, he did in law become such agent, under 2 Comp. Laws, § 7246 (providing that any person who aids in transacting the business of a foreign insurance company shall be deemed to be its agent), so that his consent to the removal of the insured property to other premises was binding on the insurer.
    2. Fire Insurance—Removal of Insured Property—Consent of Agent—Waiver of Provisions of Policy.
    Where application is made to the agent of an insurance company for permission to remove insured property to another location, and the agent verbally consents to the removal, but fails to indorse such consent on the policy, such failure cannot be set up by the company as a defense to an action on the policy, notwithstanding a provision therein that no officer, agent, or representative of the company shall have power to waive any provision or condition of the policy, or to grant any • privilege or permission affecting the insurance, except by writing so indorsed.
    8. Insurance—Notice—Subagency.
    Notice to a clerk in the office of an insurance agent, as to matters affecting a risk, is notice to the agent.
    4. Fire Insurance—Removal of Insured Property—Consent of Insurer—Estoppel.
    When an insurance company is advised of the removal of insured property to another location, it becomes its duty either to consent to the removal, or to cancel the policy and return the unearned premium, as provided in the policy; and, in case of its failure to act upon the latter alternative, it will be held to have accepted the former.

      Error to Wayne; Hosmer, J.
    Submitted March 7, 1901.
    Decided July 10, 1901.

      Assumpsit by Henry B. Pollock, Charles A. Pettibone, and William H. Chapman, copartners as Pollock, Petti- ' bone & Chapman, against the German Fire-Insurance Company of Pittsburg, Pennsylvania, on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Frecl H. Warren, for appellants.

      Tarsney & Fitzpatrick, for appellee:
    Cited, to the point that there can be no such thing as a verbal waiver o'f the provisions of the standard policy: Kytev. Assurance Co., 144 Mass. 43 (10 N. E. 518); PtRnam Tool Co. v. Insurance Co., 145 Mass. 265 (13 N. E. 902 ); Parker v. Insurance Co., 162 Mass. 479 (39 N. E. 179 ); Moore v. Insurance Co., 141 N. Y. 219 (36 N. E. 191); Grayv. Insurance Co., 155 N. Y. 180' (49 N. E. 675); Hankins v. Insurance Co., 70 Wis. 1 (35 N. W. 34); Bourgeois v. Insurance Co., 86 Wis. 606 (57 N. W. 347); Straker v. Insurance Co., 101 Wis. 413 (77N. W. 752); Smith v. Insurance Go., 60 Vt. 682 (15 Atl. 353, 6 Am. St. Rep. 144, 1 L. R. A. 216); Insurance Co. v. Hook, 62 Ohio St. 256 (56 N. E. 906); Insurance Co. v. Myers, 62 Ohio St. 529 (57 N. E. 458, 49 L. R. A. 760); Robinson v. Fire Association, 63 Mich. 90 (29 N. W. 521); Cleaver v. Insurance Co., 65 Mich. 527 (32 N. W. 660, 8 Am. St. Rep. 908), 71 Mich. 414 (39 N. W. 571,15 Am. St. Rep. 275); Cook v. Insurance Co., 84 Mich. 12 (47 N. W. 568); Gould v. Insurance Co., 90 Mich. 302 (51 N. W. 455); Mallory v. Insurance Co., 97 Mich. 416 (56 N. W. 773); Ranspach v. Insurance Co., 109 Mich. 699 (67 N. W. 967); Sutherland v. Insurance Co., 110 Mich. 668 (68 N. W. 985); Wadhams v. Assurance Co., 117 Mich. 514 (76 N. W. 6).

       Rehearing denied November 4, 1901.

   Moore, J.

This is an action upon a fire-insurance policy. The circuit judge directed a verdict for the defendant. The case is brought here by writ of error.

The policy was dated September 4, 1898, and was for one year. It contained the following provisions:

“ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached.”

“ This policy shall be canceled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that, when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium. ”

It is conceded that, if defendant is liable at all, it is for $1,800, and interest from July 19, 1899.

The facts are not in dispute. The plaintiffs are wholesale merchants in Detroit. For some years their place of business was at 143 Jefferson avenue. They carried a considerable line of insurance, about one-half of which was placed with Vernor Bros., and the other half with Bierce & Sage. The plaintiffs did not know that either of these firms issued to them policies in any company for which they were not themselves agents. . When the plaintiffs desired insurance, they would notify one or the other of these firms of the amount. The policy or policies would be written, and delivered to them, and the premium would be paid to the firm procuring the policy. In September, 1898, plaintiffs ordered from Bierce & Sage $4,000 of insurance, and they delivered two policies of $2,000 each, running one year from above date. One of these policies was in the defendant company. Bierce & Sage were not agents for this company, but it was represented in Detroit by one Victor P. Gaukler, from whom Bierce & Sage ordered the insurance. Gaukler delivered the policy to Bierce & Sage, and the latter delivered it to plaintiffs. Later Bierce & Sage collected the premium from plaintiffs, and made a settlement with Gaukler.

When these policies were delivered to .plaintiffs, there appeared pasted on the outside of each policy as folded, near the bottom, a printed green' slip inches long by 1-J-inches wide, upon which was the following:

“ Bierce & Sage,

“ General Insurance Agents,

“5 Whitney Opera House Bldg. “Telephone: Both Lines, 1,112.

“Detroit, - - - - Mich.”

The plaintiffs supposed Bierce & Sage were the agents for these companies, and not until after the fire did plaintiffs know that Bierce & Sage had furnished them any insurance in companies for which they were not the actual agents. Plaintiffs did not know Gaukler at all; had never had any insurance business with him. All the business regarding these policies was done solely with Bierce & Sage, and they knew no one else in the transaction. It further appeared by the testimony of Sage, Vernor, and Waterfall, who have been in the fire-insurance business in Detroit from 6 to 25 years, that it is customary to write what is known as “ exchange insurance; ” that when an agent receives an order for insurance, which, for some reason, he cannot write in his own companies, he places it with other agents. In such cases the customer does business solely with the agent with whom he places the order, •and does not know or come in contact with the agent who actually writes the policy at all. "The first agent delivers the policy, collects the premium, attends to renewals, and settles with the agent or company who wrote the insurance. It also appeared by the testimony of the same wifinesses that it was the universal and invariable custom among insurance agents, whenever they ordered insurance from another agency, to place their own names on the policy as agents, either by paster or rubber stamp, before delivering it to the customer; also that, if some privilege was asked or granted during the life of the policy, it would be the duty of the agent who took the original order for the insurance, and delivered the policy, to see that the permit slip was attached to the policy or delivered to the customór. It was further shown that agents who have authority to write policies have authority to consent to transfers from one location to another; that it would be their duty, upon receiving such a request, to see that the transfer was made, or a reason given for not transferring it; that an agent might consent to a transfer, and the company afterwards refuse it; but that, in all cases where a transfer was refused, it would be the duty of the company to give the customer five days’ notice of the cancellation of his policy, and return to him the unearned premium pro rata.

Plaintiffs began moving from 143 to 185 Jefferson avenue about January 1, 1899. Before commencing to move, Robert Pollock had called the attention of Prank Sage, an employé and special agent for Bierce & Sage, to the contemplated change, and shown him the new location. Sage told him he was glad they were going to move, that it was a better risk, and that their insurance must be transferred. The record shows the fire risk in the new location was regarded as less than the old one. January 3d, Robert Pollock telephoned Bierce & Sage to transfer their insurance from 143 to 185, and, on the 5th, Vernor Bros, were ordered by telephone to transfer theirs. The message to Bierce & Sage was received by Mr. Sage himself, and he at once looked up the insurance covering the risk. They had a record in their office of all the insurance they had placed for the plaintiffs, including the policy written by Gaukler in the defendant company, and a policy written by Waterfall in the Citizens’, of Pittsburg. Mr. Sage then called up Gaukler’s office, and told the young lady who answered the telephone that Pollock, Pettibone & Chapman were moving, or had removed, to 185 Jefferson avenue, and wanted their insurance transferred. He also called up Waterfall, and told him the same thing. He then instructed two young ladies in the office—Miss Jakel and Miss Lennox—to make out transfer slips in all the companies represented by them, which was done. All of these policies were transferred as of January 3d, except two, which were transferred on the 9th. Vernor Bros.’ insurance was transferred January 5th. When the order for the transfer came in, Mr. Harmon Vernor made out transfer slips, and carried them over to plaintiffs. Robert Pollock took the policies from the safe, and handed them to Vernor, who pasted the transfer slips on the policies, and gave the bunch back to Pollock, who returned them to the safe. Plaintiffs supposed all their insurance had been transferred to the new location.

The fire occurred April 4, 1899. The two agencies were notified. Bierce & Sage notified all their companies. The loss was adjusted by a committee of adjusters representing thev insurance companies, and by Mr. Chapman and Mr. Pettibone for the plaintiffs. The loss on stock was adjusted at $27,000, and all the companies have paid except the defendant and the Mercantile Fire & Marine. After the fire, it was discovered that these two policies had not been formally transferred to the new location by transfer slips actually affixed to the policies, although plaintiffs ■supposed all insurance had been transferred, and Bierce & Sage did not know until after the fire that the transfer had not been made. It does not appear why the transfer was not made upon the policy in suit. Mr. Gaukler had died before the trial. The policy was never canceled, nor was a return or tender of any portion of the premium money made. When the defendant was notified of the fire, it denied any liability, for the reason “that this policy was not transferred to No. 185 Jefferson avenue, nor did our agent consent to its transfer.” It is insisted Bierce & Sage were not defendant’s agents,,and that no permission was given in writing to remove the goods to the new location.

The first question calling for attention is, Under the facts and circumstances shown, were Bierce & Sage agents of the defendant ? The legislature of this State has undertaken to regulate the manner in which, and the conditions under which, foreign insurance companies can do business in this State. Section 7246, 2 Comp. Laws, makes it obligatory upon the company to do certain things before it can do business at all in the State. The section also contains a provision reading as follows :

“The term ‘agent’or ‘agents,’ used in this section, shall include any acknowledged agent, surveyor, broker, or any other person or persons who shall in any manner aid in transacting the insurance business of any insurance company not incorporated by the laws of this State. ”

Wisconsin has a statute in substance -like this one, which has been construed by the courts of that State a number of times. In Schomer v. Insurance Co., 50 Wis. 575 (7 N. W. 544), the facts were almost, if not quite, the same as those in this case, Lawson standing in the place of Bierce & Sage. In disposing of the case the court said:

‘ ‘ Now, it is difficult to imagine what object this provision was intended to accomplish, or what purpose subserve, if it has not the effect, under the circumstances, to make Lawson the agent of the defendant in the transaction. His acts certainly bring him within both the letter' and spirit of the law. He was the only real actor for the defendant in making the contract. Pro hac vice he assumed to represent, and did represent, the company in the matter. He received the application, settled with the insured the rate and terms of insurance, delivered to them the policy, collected the premiums, and shared in the commission. In fact, he did everything that was done on behalf of the company, except the mere act of countersigning the policy. He was the only person the plaintiffs dealt with. They knew no other agent in effecting the insurance. They were totally ignorant of .his relation to the defendant, or of his want of authority to represent and act for it. It is idle to contend that he did not in any manner aid or assist in making the contract for the company, when he was, in fact, the only person who did treat with the plaintiffs on its behalf. * * *

! ‘ But it is said that it was unreasonable to make the defendant responsible for the acts of Lawson, who was never authorized to act for it or bind it in any way. The answer to this objection is, the legislature has assumed the right to regulate the business of insurance, and prescribe the manner in which it shall be conducted in this State. It has declared that whoever solicits insurance on behalf of an insurance company, or makes any contract of insurance, or in any manner aids or assists in making such contract, or transacts any business for the company, shall be held an ’ agent of such company tó all intents and purposes. The obvious' intention of the legislature is to make an insurance company responsible for the acts of the person who assumes really to represent and act for it in these particulars, and to change the rule of law that the insured must, at his peril, know whether the person with whom he is dealing has the power he assumes to exercise, or is acting within the scope of his authority. * * * It seems to be designed in the clearest manner- to make the company responsible to the public for the acts of one whom it permits to solicit insurance on its behalf, or who receives applications for insurance, makes or aids in making contracts of insurance, or transacts the business, whether such person has in fact authority to act for it or not. The law imposes upon the company the duty of seeing to it that none but its regular, authorized agents shall do its business or deal with the public. It is certainly not difficult for an insurance company to say to its local agents that they alone must transact its business; that they must in all cases deal directly with the insured in making insurance contracts, and not allow the interference of any stranger in its business, for whose acts it does not wish to lie held responsible. That this is the plain object and intent of the statute we have no doubt. And, where the insurance company issues a policy in a case where a person has assumed the right to act for and represent it in making the contract, it must abide by the consequences, and meet the liability which the statute imposes upon it.”

A like statute applying to a like case' was construed in Continental Ins. Co. v. Ruckman, 127 Ill. 364 (20 N. E. 77, 11 Am. St. Rep. 121), where the court said:

“The manifest intention was to make such companies responsible for the acts not only of its acknowledged agents, etc., but also of all other persons who in any manner aid in the transaction of their insurance business. Nor do we see anything inequitable or oppressive in such provision. Doubtless, the mere assumption of authority to act for an insurance company will not of itself charge the company with responsibility for the acts of the assumed agent. The company must in some way avail itself of such acts, so that the person performing them may be said to aid the company in its insurance business-. But, after a company has availed itself of the acts of an assumed agent, and thus adopted them as its own, there is nothing oppressive in assuming, as against such company, the existence of the relation of principal and agent, and charging the company with responsibility for such acts.”

See, also, Alkan v. Insurance Co., 53 Wis. 136 (10 N. W. 91); Body v. Insurance Co., 63 Wis. 157 (23 N. W. 132); Bennett v. Insurance Co., 70 Iowa, 600 (31 N. W. 948); May v. Assurance Co., 27 Fed. 260; McGraw v. Insurance Co., 54 Mich. 145 (19 N. W. 927); Ahlberg v. Insurance Co., 94 Mich. 259 (53 N. W. 1102). We see no reason why the same construction should not be put upon this statute that has been put upon like statutes in sister States.

We then come to the question, Does the liability of the company cease because the goods were removed to a new location without the consent to the removal being indorsed upon the policy? In Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 506, the policy provided that “anything less than a distinct agreement indorsed on this policy shall not be construed as a waiver of any written or printed condition, restriction, or stipulation herein contained.” The goods were damaged by fire during the life of the policy, but not until they had been removed to an adjoining building. Previous to the removal, the insured went to the company’s office, and there saw the president, and notified him that he desired to move into another brick building, and asked whether there was any objection to his so doing. The president asked him if he had his policy with him, and, on being informed he had not, replied it did not matter; he could fix it all right. Insured understood him to say it was not necessary for him to bring the policy. The company defended on the ground that there was no indorsement on the policy consenting to the removal of the goods. Miller, J., after referring to the case of National Fire Ins. Co. v. Crane, 16 Md. 260 (77 Am. Dec. 289), which was a case of additional insurance without the stipulated indorsement on the policy, said:

“Since that decision the doctrine of equitable estoppel has, especially in insurance cases, been extended, and applied at law as well as in equity, by adjudications of the courts of last resort in many of the States, and the current and weight of judicial precedent and authority in this country have established the proposition that in such cases the estoppel is equally available in either tribunal. The Supreme Court in Wilkinson’s Case, 13 Wall. 222, has also in a very able opinion sustained this position. * * * ‘ The principle is that, where one party has, by his representations or his conduct, induced the other party to a transaction to give him an advantage, which it would be against equity and good conscience for him to assert, he would not, in a court of justice, be permitted to avail himself of that advantage.’ This proposition, thus sustained by the modern decisions, and founded in reason and justice, they add, does not admit that the written instrument may be contradicted by oral testimony, but goes upon the idea that it may be shown by such testimony that the written instrument cannot be lawfully used against the party whose name is signed to it.

“ Most of the reported cases in which this doctrine has been applied are those where the acts, representations, or omissions of the agents of the companies precede or attend the issuing of the policies. But it is also applicable whejre facts arise during the currency of the contracts; as, for instance, where, in case of insurance by a mutual insurance company, assessments have been made and received b}^ the company on the premium note, or where premiums have been received, after knowledge, actual or constructive, of the invalidity of the policy ab initio, or of a subsequent breach of its conditions. 2 May, Ins. § 502. In our opinion, the case before us falls clearly within the principle thus established, and it is no extension of the doctrine thus to apply it. The assured, before removing his goods, applied in person to the president of the company, and asked him if there was any objection,—that is, would the removal affect the continuance of the insurance upon them? He was informed by the president, who knew of the absence of the policy at the time that it was no matter, that he would fix it all right, and that he need not bring the policy. That is, he said to the assured, in effect: ‘ Go on, and remove your goods. You need not bring your policy, and have the permission to do so indorsed on it. The insurance shall continue in force without such indorsement.’ The assured departs, and removes his goods, relying upon the statements and assurance thus made and given to him. By so acting he did that which prejudiced his interest under the policy. He thereby gave the company the advantage of retaining the premium without further continuance of the risk, and also the advantage of setting up this defense against their liability after the loss had occurred. Would not the success of this defense operate a fraud upon the assured ? We think it clear the company ought to be and are estopped from making it. Whilst the law affords ample protection to these companies, as well as to individuals, against frauds, misrepresentations, and breaches of warranty, it will not, and ought not, to help them to perpetrate frauds upon those with whom they make contracts, in which good faith on both sides, as well in their continuance as origin, has always been regarded as a'ruling consideration.”

In Henschel v. Insurance Co., 4 Wash. 476 (30 Pac. 735, 31 Pac. 332, 765 ), the insured, desiring to remove his goods several blocks distant from the place-where they were originally insured, delivered his policy to the company’s agent, who promised to indorse consent to the removal on the policy, in writing, and return it to him. Before the indorsement was made, the building to which the goods had been in the meantime removed was burned, and a loss occurred. The agent then indorsed a cancellation on the policy. The company disclaimed liability, and in an action insured recovered the full amount of the insurance. The policy contained a clause like the one in the policy in this case as to limitations upon the power of agents and the necessity for written indorsements. Stiles, J., said:

“The appellant substantially claims for this clause the construction that, until its consent was physically indorsed upon the paper, the property of the respondent was unprotected in its new location, notwithstanding the agreement of the agent to indorse the necessary consent, and his receipt and retention of the policy for that purpose. The respondent claims that the conduct of the agent estops the appellant to say that the proper indorsement was not made.

“Appellant’s counsel have presented us many eminent authorities upon the subject of th'e waiver of conditions in such contracts by agents, but, with due respect to the learning of counsel and the force of the authorities they produce, we cannot regard this as a case of .technical waiver. We do not find that the respondent is proposing to strike from the policy a single line or word, but that, fully recognizing the binding force of the extremest stipulations against him, he went to the agent, and himself proposed a strict compliance with them. To this proposition the agent assented, and agreed, not that anything should be waived, but that he himself would indorse upon the contract the words necessary to cover the goods in their new location; and now the respondent, invoking the equitable rule that, since he has relied upon the promise made to him, what was agreed to be done shall be taken as having been done, claims that the contract is what it, but for the negligence of the agent, undoubtedly would have been.”

The court then proceeds to discuss the power of the agent, and quotes with approval Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 506, and closes with these words:

“'So, in this case the appellant, having received the premium for a year’s insurance, now, without any offer to return any portion of the unearned premium, sets up what we deem an unconscionable defense, when it claims that, after actually insuring the respondent less than 30 days, the neglect of its own agent to do what he ought to have done should relieve it of all liability.”

In Pelkington v. Insurance Co., 55 Mo. 172, where it was made the express condition of a contract of insurance that, if the insured should make any other insurance on the property without the written consent of the company indorsed on the policy, he should recover no insuranee thereon, and it appearing that the agent was duly notified of such additional insurance, and made no objection, the court said:

‘ ‘ When the assured has notified a company that he has procured additional insurance, it is the duty of the company, if it does not intend to be further bound or to continue the risk, to express its dissent, and not allow the party to repose in fancied security, to be victimized in case of loss. It is unconscientious to retain the premium, and affirm the validity of the contract, whilst no risk is immi-' nent, but, the very moment that a loss occurs, to then repudiate all liability and claim a forfeiture. If the indorsement is not made upon notice duly given, a waiver will be presumed, in the absence of any dissent. If a party, by his silence, directly leads another to act to his injury, he will not be permitted, after the injury has happened, to then allege anything to the contrary; for he who will not speak when he should, will not be allowed to speak when he would.”

See Copeland v. Insurance Co., 77 Mich. 560 (43 N. W. 991, 18 Am. St. Rep. 414); Tubbs v. Insurance Co., 84 Mich. 652 (48 N. W. 296).

In this case Bierce & Sage notified the persons in charge of Mr. Gaukler’s office of the removal of these goods. This would be notice to the agent, and hence notice to the company. In Steele v. Insurance Co., 93 Mich. 84, 85 (53 N. W. 514), Grant, J., said:

“The precise claim is that the local agents cannot re-delegate their authority to clerks, unless such authority to redelegate is conveyed in express terms. In general, this is true; but courts will recognize the ordinary course of business. It must be well known that these local agents do their business to a very large extent through clerks, who solicit insurance, make out applications and policies, and generally attend to the business of their employers. In such cases their acts are as binding as though done by the agents themselves,”—citing Story, Ag. § 14; Continental Ins. Co. v. Ruckman, 127 Ill. 364 (20 N. E. 77, 11 Am. St. Rep. 121); Bodine v. Insurance Co., 51 N. Y. 117 (10 Am. Rep. 566 ); Bennett v. Insurance Co., 70 Iowa, 600 (31 N. W. 948).

See, also, Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463.

There could be no possible question about the authority of Gaukler to consent to the removal of these goods, and, he and the company having knowledge of their removal, it became the duty of the company to do one of two things, —either consent to the removal, or cancel the policy and return the unearned premium. It could not retain the premium, and thus profit by it in case there was no loss, and, the moment there was a loss, deny any liability, though still retaining the premium. McGraw v. Insurance Co., 54 Mich. 148 (19 N. W. 927 ); Haire v. Insurance Co., 93 Mich. 481 (53 N. W. 623, 32 Am. St. Rep. 516); Ætna Ins. Co. v. Maguire, 51 Ill. 342; Goit v. Insurance Co., 25 Barb. 189; Hathorn v. Insurance Co., 55 Barb. 28.

We think, under the facts shown by this record, defendant company is liable. The judgment is reversed, and a new trial granted.

Montgomery, O. J., Hooker and Grant, JJ., concurred. Long, J., did not sit.


author: Moore, J. Per Curiam.

text:
    DOWAGIAC MANUFACTURING CO. v. CORBIT.
    1. Contracts—Parol Evidence to Modify Writing—Warranty.
    Where a written contract for the sale of a machine purports to contain the entire agreement of the parties, and warrants the machine “only against breakage,” evidence that the seller verbally agreed to send a man to set up the machine, and that he represented it to be as good as a machine of another make, is inadmissible as tending to vary the terms of the writing.
    2. Same—Breach of Warranty—Evidence.
    And evidence that the machine did not work properly is likewise inadmissible as not within the express warranty.

      3. Breach of Contract—Damages—Loss of Profits.
    Where defendants contracted to purchase of plaintiff all grain drills necessary to supply their trade in a certain locality, but, after the purchase and subsequent sale of one machine, which was returned for failure to work properly, sold a number of machines of a different make to their customers, evidence that plaintiff’s drills -were as good, salable, and cheap as the ones sold by defendants, and that defendants could have sold as many of plaintiff’s drills as they did of the other kind, on which plaintiff would have made a certain profit, was properly excluded in an action for a breach of the contract, as too speculative to furnish a basis for a computation of damages.
    on application for rehearing.
    1. Appeal—Rehearing—Mislaid Briefs.
    A rehearing will not be granted because appellee’s briefs were mislaid after being filed with the clerk, so that they were not •before the court at the time the case was disposed of, where an examination of the briefs discloses .no reason for disturbing the conclusion already reached.
    2. Same—Costs.
    The denial of the motion, however, will be without costs against the appellee, since he was entitled to have his briefs considered by the court.
    Error to Clinton; Stone, J.
    Submitted March 7, 1901. Decided July 10, 1901.
    Rehearing denied November 12, 1901.

      Assumpsit by the Dowagiac Manufacturing Company against John H. Cor bit and Edgar L. Valentine, copartners as Corbit & Valentine, for the breach of a contract to sell plaintiff’s machines. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Ediuin H. Lyon, for appellant.

      H. E. Walbridge, for appellees.
   Moore, J.

In the early part of 1898 a contract was made between the parties to this litigation, the material parts of which are as follows:

“This agreement, made this 15th day of March, A. D. 1S98, between the Dowagiac Manufacturing Company, of Dowagiac, Michigan, of the first part, and Cor bit & Valentine, of St. Johns, county of Clinton, and State of Michigan, of the second part, Witnesseth, that the party of the second part is hereby authorized to sell the grain-seeding machinery manufactured by the party of the first part in the following territory, viz.: St. Johns and trade vicinity.

“In consideration of above covenants, the party of the second part does hereby agree to purchase of said Dowagiac Manufacturing Company all grain drills and seeders of its manufacture to supply their trade in above-mentioned territory, at prices shown by printed list on reverse side of this contract. * * * ,

“ The Dowagiac Manufacturing Company, on their part, agree to deliver said goods to the said party of the second part f. o. b. cars at Dowagiac in car-load lots, and at transfer point in less than car-load lots with advance transfer charge of $1.00 for each drill and 25 cents per set for press wheels, also freight to transfer point; and to fill further orders promptly so long as they have such machines on hand and transportation can be procured, and to appoint no other agent for said territory, provided second party fully performs the foregoing stipulation and agreements. * ^ ••!=

“It is understood the goods are warranted only against breakage, caused by manifest defect in. material, for the year in which they are sold; and no goods returned to second party under warranty to be credited to account, but made good or replaced by new goods, as the party of the first part may elect. * * *

“ Upon this and future shipments, no agreements, considerations, or stipulations modifying or changing the tenor hereof shall be recognized or binding, except they are in writing, and signed by the party of the first part or their authorized agent.

“The terms set forth in this contract to apply to all goods purchased of said party of the first part during the continuance of this instrument.”

One drill was shipped July 15th, and received a few days later. Defendants paid the freight upon and allowed it to remain in the freight depot until in August, when they took it from the depot, and a clerk of defendants and an agent of plaintiff set it up. It was after-wards sold to one Hathaway, who, after using it, returned it, claiming it would not do its work well. It was after-wards sent by defendants to plaintiff, at Dowagiac. It is the claim of plaintiff that defendants did not make any effort to sell their drills, but did sell 15 to 18 Empire drills. This suit was brought to recover for damages for a breach of the contract, and also for the price of the drill. The case was tried by a jury, who returned a verdict in favor of defendants.

A good many assignments of error are argued in the brief of counsel for plaintiff. We are not favored with a brief on the part of defendants. Upon the trial the defendants were allowed to give testimony of a verbal arrangement that plaintiff was to furnish an agent to set up the machines and to assist in making sales, and that the drills were represented- to be as good as the Empire drills. They were also allowed to give testimony tending to show that the drill sold to Mr. Hathaway did not do its work properly; that it could not be thrown out of gear, but would sow seed as it was taken back and forth to its work. It is claimed that the admission of this testimony was error, because it tended to show a different contract and a different warranty from the one expressed in the written contract. We think the contention of plaintiff is right. See McCray Refrigerator Co. v. Woods, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599), where the discussion is so full that it is not necessary to cite other authority.

Plaintiff offered to prove that St. Johns is located in a good farming community; that defendant Valentine testified at another time and place that defendants sold 15 to 18 Empire drills during the season of 1898, while the contract in question was'in force; that'plaintiff’s drills would do the work of those drills as well or better, and were better-made drills; that plaintiff’s drills, in competition, sold as well as other drills; that they are salable machines for the purposes for which they are made; that they are good-selling drills, and capable of doing the work of any grain drills for all purposes for which grain drills are used, well constructed, sell as cheap as other grain drills, and find as ready sale in the market; that defendants were good salesmen, and, with proper application of their abilities in that direction, as required by the letter and spirit of the contract, could have sold as many Dowagiac drills as they did of the Empire drills in the season of 1898; that plaintiff’s witness Eowle was familiar with the construction and cost of plaintiff’s drill, and of the Empire and other drills manufactured and sold throughout Michigan; that plaintiff would have made an average profit of upwards of $15 per drilf delivered under the terms of this contract, and had plenty of all kinds of drills on hand during the continuance of the contract, ready to be delivered to defendants upon request. The court thought the claim for damages was too speculative, and excluded the testimony. Plaintiff insists that it was entitled to go to the jury on the question of damages on account of defendants’ failure and refusal to buy all grain drills and seeders of its manufacture to supply their trade; citing in favor of its contention Hutchings v. Ladd, 16 Mich. 493; Olivers. Perkins, 92 Mich. 304 (52 N. W. 609); Hitchcock v. Supreme Tent, Knights of Maccabees, 100 Mich. 40 (58 N. W. 640, 43 Am. St. Rep. 423); Industrial Works v. Mitchell, 114 Mich. 29 ( 72 N. W. 25); and other cases.

An examination of those cases will show that they were quite different from this one. The testimony in these cases disclosed a basis from which the damages sustained could be computed with reasonable certainty. In this case no drills made by the plaintiff had ever been sold by defendants when the contract was made, and but one was sold afterwards, and that was returned upon the claim that it would not do its work. There was nothing in this testimony indicating that there was a market for these drills at St. Johns and vicinity. The sale of a given piece of machinery in a new territory, where its merits or demerits are not known, depends upon so many contingencies that no one can speak with any reasonable certainty of how many will be sold by a given firm in a given time. Any attempt to fix the number of sales would be mere guesswork, and is too speculative to form a safe basis upon which to compute damages. See Allis v. McLean, 48 Mich. 428 (12 N. W. 640); Talcott v. Crippen, 52 Mich. 633 (18 N. W. 392); Aber v. Bratton, 60 Mich. 357 (27 N. W. 564); Petrie v. Lane, 67 Mich. 454 (35 N. W. 70); Maltby v. Plummer, 71 Mich. 578 (40 N. W. 3); John Hutchinson Manfg. Co. v. Pinch, 91 Mich. 156 (51 N. W. 930, 30 Am. St. Rep. 463 ). The circuit judge made a right disposition of this branch of the case. What we have said as to these assignments of error will dispose of the other questions raised.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.

ON APPLICATION FOR REHEARING.

Per Curiam.

An opinion was filed in this case July 10, 1901. In the opinion it was stated we’ were not favored with a brief by appellees. After the opinion was filed, it was made to appear to the court that briefs were filed by the appellees with the clerk, but were inadvertently mislaid, so that they were not called to the attention of the court before the opinion was written. A motion is made for a rehearing, for the reason that the court did not consider the briefs of appellees, and also because it is said, if it was error to introduce testimony of a verbal arrangement, it was harmless error, and the case ought to be affirmed.

In disposing of this application for a rehearing, we have examined, not only the briefs- furnished on the motion for a rehearing, but have also examined the original briefs filed in the case. Wé are satisfied, from such examination, with the disposition of the case heretofore made, and, as we think no different conclusion would be reached if a rehearing was ordered, we decline to order it.

The counsel for appellees was entitled to have his brief considered before the case was disposed of. As it was not considered by the court, for the reason before stated, until this application for a rehearing was made, we think appellees ought not to be subjected to the costs of this motion, and no costs of the motion will be given.