text:
    WICKING v. CITIZENS’ MUTUAL FIRE INSURANCE CO.
    1. Fire Insurance — Amount of Loss — Arbitration.
    Plaintiff in an action on an insurance policy cannot claim that an arbitration, in which defendant joined with other companies to determine his loss, was, because of the participation of such companies, not an arbitration under the policy-in suit, but a common-law arbitration, where the policy of each of the companies was in the standard form, differing from the others only in the name of the company, and the-arbitration was such as is provided for therein. Connecticut Fire Ins. Co. v. Hamilton, 8 C. C. A. 114, 59 Fed. 258, distinguished.
    2. Same — Proofs of Loss — Captious Objections.
    That proofs of loss forwarded to and received by the insurer contained no formal address to the company, and failed tosíate accurately the addresses of other insurers, are objections without force.
    3. Same — Location of Fire — Specification.
    Where the insurer’s agents knew the location of a fire, it is-, immaterial that the proofs of loss failed to state it with exactness.
    4. Same — Interest of Insured — Accuracy of Statement.
    The fact that the statement of ownership in proofs of loss was-made in the present tense, while the proofs were dated some-days later than the fire, does not repel the inference that the-statement was understood by the parties to refer to the time of the loss.
    5. Same — Waiver.
    Defects in proofs of loss, and insured’s refusal to submit to-an examination under ,oath as provided by the policy, are-waived by negotiations for settlement being renewed, and insured’s going to a place by appointment with and request of the insurer, at an expenditure of time and money, and making a statement of his business, and offering to be ques-tioned under oath.
    Error to Shiawassee; Smith, J.
    Submitted October 19', 1898.
    Decided December 6, 1898.

      Assumpsit by Frank E. Wicking and Frederick J. Storrer, copartners as Wicking & Storrer, against the Citizens’ Mutual Fire Insurance Company, of Jackson, on a policy of insurance. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    This is an action to recover for a loss by fire under a policy of insurance issued November 17, 1895, the fire occurring about midday January 1,1896. The policy was for $1,000. The goods were insured in eight other companies, for $8,500. The defendant and the other companies were promptly notified of the fire. The secretary and adjuster of the defendant, and also the adjusters of other companies, visited the store. Some of the goods were completely destroyed, and the rest damaged by smoke and water. Under the instruction of the adjusters, plaintiffs moved the goods into another building, arranged them according to the damage done, and made an inventory. Plaintiffs and the adjusters could not agree upon the amount of damage. Thereupon, according to the terms of the policies, plaintiffs and the insurance companies, including defendant, made an agreement, January 9th, for submission to appraisers. This agreement submitted only the amount of loss and damage, and provided that the appraisement should be—
    “ Prima facie evidence as to the amount of such loss and damage; it being understood that this appointment is without reference to any other questions or matters of difference within the terms and conditions of the insurance, and is of binding effect only so far as regards the actual cash value of, and the loss and damage to, said property.”
    The arbitrators made an award fixing the sound value to be $14,127.96, and the damage to be $7,552.69. The date of the award was January 24th. On the same day, plaintiffs, learning that the arbitrators were about to conclude the inventory without considering the goods totally destroyed, sent a written communication to them, requesting them to appraise such goods, and offering to submit to them all their books, papers, and inventory made previous to the fire, and all other evidence which they had or could produce. One of the arbitrators indorsed upon the inventory that it did not cover any goods which were entirely destroyed. The adjuster for the defendant and one other adjuster were present while the arbitrators were at work. The companies werfe satisfied with the award. Plaintiffs were not. The latter part of January, plaintiffs caused another inventory to be taken by three parties. On January 30th, plaintiffs wrote the defendant that they intended to open their store, and Commence selling goods, February 5th, which they did. To this letter defendant made no reply until March 7th. The reason given for proceeding to sell is that the goods were deteriorating.
    On February 11th, plaintiffs sent by express, to the defendant and each of the other companies, proofs of loss, which were received by the defendant February 14th. On March 7th it made the following reply:
    “Onthe 14th day of February, ult., the Citizens’ Mutual Fire Insurance Company, of Jackson, Michigan, received at its head office in that city a package of papers, without any letter or other communication explaining them, consisting of 93 pages of mimeograph, written, and typewritten work. The first page is headed ‘ Inventory of Wicking & Storrer Stock of Goods.’ This part of the work comprises 84 pages. The footings of the 84th page read as follows: ‘ Cash value of goods which were on hand at time of fire, $15,939.66. Amount of loss thereon, $10,-909.95.’ The subsequent six pages are typewritten, and purport to be a statement under oath, signed and sworn to by Frank E. Wicking and Frederick J. Storrer, setting forth the following circumstances, viz.: That a fire occurred on the 1st day of January, 1896, which destroyed and damaged ‘the aforementioned goods as above set forth;’ that the cause of the fire was from a stovepipe; that deponents are sole owners,of said stock of goods, and. no one else has any interest in the same; that the cash value is ‘as above stated,’ and the loss is as above stated; that there was no incumbrance on said goods; that there was other insurance to the amount of $8,500 (list of companies follows); that copies of all the descriptions and schedules of policies in the following named companies purport to be given, viz.: The Granite State Fire Insurance Co., the British America Assurance Co., the Hartford Fire Insurance Co., the Girard Fire & Marine Insurance Co., the Western Assurance Co., the Delaware Insurance Co., the Northern Assurance Co., and the United States Fire Insurance Co.; that the building in which said goods were situated at the time of the fire was occupied as therein stated. The following and last pages purport to be a true copy, sworn to by Frank E. Wicking and Frederick J. Storrer, of a certain ‘Award of Appraisers,’ bearing date the 24th ■day of January, 1896, signed by W. C. Lewis, W. W. Thomas, Samuel Lamfrom, appraisers, in which the sound value was determined to have been $14,127.96- and the loss and damage $7,552.69.
    “The foregoing is a short statement of the contents of said package, which, beyond the envelope or covering in which it came, does not seem to be addressed to the said Citizens’ Mutual Fire Insurance Company, nor does the name of said company appear anywhere in its text. If said document or package is intended as proofs of loss against the Citizens’ Mutual Fire Insurance Company of Jackson, under policy No. 1,021,719, and your claim against said company on account of the fire of January 1, 1896, I am instructed by the said Citizens’ Mutual Fire Insurance Company to notify you that the same is incomplete, misleading, and not in accordance with the conditions of said policy, and lies in my office subject to your order. The document or package does not show any connection between the Citizens’ Mutual Fire Insurance Company and Wicking & Storrer; it does not refer to a policy -of the Citizens’ Mutual Fire Insurance Company; nor does it set forth the sum for which said company is liable pursuant to said policy. (See line 3, Michigan standard conditions.) Line 74 of the Michigan standard conditions requires a statement of any changes in the title, use, occupation, location, possession, or exposure of said property since issuing the policy. Your document or package ignores this altogether. The Michigan standard policy contemplates that the insurer shall have true knowledge of the title to property insured from the issuing of the policy till date of fire. Your document or package bears date February 7, 1896, and its language is in the present tense, of that date. It states-that deponents are sole owners of said stock of goods, and' no one else has any interest in the same. The conditions of the policy require a statement of title at the time of the fire, which you have not given. The wordings you have given of the other insurances must be wrong. They are certainly misleading and confusing. You have located the following companies at 116 West Exchange street, viz.: United States, Citizens’ Mutual, Girard, Hartford, and British America; the Northern and Delaware at 927 west side of North Washington street; and the Granite. State and Western Assurance at the'southwest corner of Washington and Exchange streets. You will readily see that, even had your document or package been in all other respects complete and not confusing or misleading, the question of contribution among the various companies which you claim are interested would be one of grave doubt. There is nothing to show whether the fire was at 116 West Exchange street, or at 927 west side of North Washington street, or at the southwest corner of Washington and Exchange streets.
    ‘ ‘ The Citizens’ Mutual Eire Insurance Company, upon receipt of the papers referred to, supposed they were intended to be in compliance with lines 69 to 75 of the conditions of the Michigan standard policy; that the 84 pages of inventory referred to represented the inventory called for by line 69 of said conditions;' that the subsequent six pages of typewritten work represented the requirements as laid down in lines 70 to 75 of said conditions; and the two pages headed ‘Award of Appraisers’ represented a compliance with line 95 of said conditions; thus showing the companies that an inventory had first been prepared, as required by the said conditions, but, differences having-arisen regarding thv amount of loss and damage, an appraisal was held, and the final result was as stated. This company was, however, advised that the inventory in question was not the one first prepared by you immediately after the fire, and on which differences arose between you and the representatives of the companies on the ground when the agreement for submission to enter into appraisal was made, but that it is something entirely different, and of which they had no knowledge; and, instead of abiding by the award of the appraisers, you have-ignored said award, and rely upon the new and strange (to the companies) inventory, consisting of 84 pages referred to. The Citizens’ Mutual Fire Insurance Company-wishes your attention to be drawn to the fact that, under the standard policy of the State of Michigan, the amount •of loss is not ascertained in the manner which you have adopted.”
    On March 26th the proper notary’s Certificate was sent to the defendant. To this, the defendant, through its adjuster, made the following reply:
    “The British America Assurance Company, of Toronto, the Citizens’ Mutual Fife Insurance Company, of Jackson, Michigan, the Granite State Fire Insurance Company, of Portsmouth, N. H., the Northern Assurance Company, the United States Fire Insurance Company, of New York, and the Western Assurance Company, of Toronto, have advised me that they have received from you what purports to be certificates from a notary public — Thomas D. Dewey — living nearest to the place of fire, and not related to you, nor interested in the claim, and that he has examined the circumstances of the fire, and the loss on account of said fire to your goods, and that he believes you have sustained loss to the amount of $9,500 and over, by reason of said fire, which I presume is intended by you as compliance with one of my letters to you, dated March 7, 1896. Please let me know at your earliest convenience when you will be prepared to furnish the other information and particulars referred to by me, and required by the conditions of the policy. I would respectfully call your attention to lines 92, 93, 94, and 95 of the Michigan standard conditions, and suggest that you forthwith place the company in possession of the information which the policy calls for.”
    On April 17th, in reply to a letter from plaintiffs, defendant wrote them that the matter of the adjustment was largely left to Mr. Dodd, its adjuster; that it would write him at once, and apprise them of its determination after hearing from him. On June 9th, the defendant’s secretary wrote plaintiffs that he would write Dodd for information. About the same time, Mr. Wilson, the secretary, in conversation with Storrer, said that “it was time something should be done; that our loss should be settled; and he also asked me if we had anything further to submit in regard to the amount of loss. I told him ‘ No,’ and he said the only thing he could see that the adjusters were hanging out about was that we owed Wilde Brothers considerable; that his company wanted to pay our loss; and that, as soon as he could see Mr. Dodd, he would let me know. ” Storrer and plaintiffs’ attorney went to Detroit, by appointment, the latter part of June, to meet defendant’s adjuster and two adjusters representing other companies, and to discuss the possibility of a settlement. The adjusters said they had no offer to make, and asked if plaintiffs had made up a statement of their business since the fire, to which they replied “No,” and feared they would not be able to make one. Plaintiffs made offers of settlement, which were refused. The adjusters stated that if plaintiffs would get up a statement of their business since the fire, as they had asked for, they would come at once, and try to adjust their loss. Plaintiffs went home, made out a statement, and notified Mr. Dodd, who, on June 29th, went to Owosso, and interviewed the plaintiffs. On this occasion, plaintiffs submitted to Mr. Dodd all their books and papers, gave him everything he asked for, answered all his questions in regard to the business after February 5th, and offered to be put under oath if he-desired. No agreement was reached, and on July 30, 1896, plaintiffs commenced suit.
    The court instructed the jury that the plaintiffs’ case-must rest solely upon the contract of submission to, and the award of, the appraisers; that in no event could they recover more than two-nineteenths of the award; and left them to determine whether the loss sustained was less than the amount of the award. The jury rendered a ver-. diet based on the award.

      Watson & Chapman (Chamberlain & Guise, of counsel), for appellant.

      Selden S. Miner (John D. Conely, or counsel), for appellees.
   Grant, C. J.

(after stating the facts). 1. Plain» tiffs’ counsel contend that the submission to arbitration was not under the policy, but outside of it, and that it must stand on the general ground of a common-law arbitration. In support of this, they cite Connecticut Fire Ins. Co. v. Hamilton, 8 C. C. A. 114, 59 Fed. 258, which is cited with approval in Hamilton v. Phoenix Ins. Co., 9 C. C. A. 536, 61 Fed. 385, and Harrison v. German-American Fire Ins. Co., 67 Fed. 585. The appraisal demanded in that case was not such as the policy called for. All the companies in that case made a joint demand, but the terms of the policies were different, and each of necessity, therefore, mixed its controversy with the others. On page 118, 8 C. C. A., and page 262, 59 Fed., Judge Severens states wherein these policies differed, and shows that each had a separate and distinct controversy from the others. In this case the policies are all alike-, except in the names of ‘the companies, and are those prescribed by the laws of this State. All the companies could therefore join in this arbitration to determine the value of the loss without mixing separate controversies. In other words, the appraisal was just such as each policy provided, and was binding upon plaintiffs and each company only so far as the policy and the submission under it provided. Neither was -bound by the appraisal. It was only prima facie correct, and either party attacking it assumed the onus probandi. If, therefore, the circuit court relied upon the submission as a waiver of all the other provisions of the policy, he was in error. The policy expressly provides that “this company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal,” etc. It was therefore incumbent on plaintiffs to make proofs of loss, notwithstanding the submission for an appraisal.

2. It is urged that plaintiffs failed to show that they had furnished proofs of loss. By this is meant valid proofs of loss. Proofs were furnished in good faith, and under the belief that they complied with the contract of insurance. A copy was produced by plaintiffs upon the trial, and they-were examined in regard to it. An extract from it was read in evidence, which showed the goods totally destroyed, and their value, $65.9.29. It also showed the cash value of the goods on hand at the time of the fire to be $15,-939.66, and amount of loss thereon to be $10,909.95. These proofs, called “Exhibit I” in.the record, were offered in evidence. They were objected to as “incompetent, irrelevant, and immaterial.” After some discussion, the attorney for plaintiffs stated that he withdrew them for. the present. It does not appear that they were after-wards offered in evidence, and they do not appear in the record. The objections made to them in the letter of March 7th by Mr. Dodd are technical. We fail to find in this letter any statement of a material defect. Some of the objections are frivolous. Mr. Dodd and his principal fully understood that plaintiffs sent these as their proofs of loss. It was unnecessary to write a formal address to the defendant, or to state accurately the addresses of the other companies. The frivolity of some of the objections appears in his statement:

' “ There is nothing to show whether the fire was at 116 West Exchange street, or at 927 west side of North Washington street, or at the southwest corner of Washington and-Exchange streets.”

Defendant’s agents knew the location, and to permit any such objection to defeat a valid claim would be a reproach to the law. The provision of the policy in regard to these proofs is as follows:

“If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and within 60 days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not,' covering any of said property, and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described, and the several parts thereof, were occupied at the time of the fire; ánd shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.”

The only objections entitled to any consideration are:

(1) That the policy requires a statement in the proofs of loss of “any changes in the title, use, occupation, location, possession, or exposures of the property since issuing the policy.” It is manifest from this record that the title, use, location, and situation of the property were the same at the time of the fire that they were at the issuance of the policy, 44 days before; and it is a fair inference from the letter of March 7th that this was stated in the proofs of loss.
(2) That the proofs failed to show that the plaintiffs were the sole owners of the stock at the time of the fire. This is based upon the technical objection that the proofs were dated February 7th, and that the language is in the present tense. The fair inference is that both plaintiffs and defendant understood this to refer to the time of the fire.

We think there is enough upon this record to show that correct proofs of loss were furnished.

3. The policy provides for an examination of the insured under oath. Such an examination was demanded, and had February 25th to 27th. Upon that examination,, plaintiffs, under the advice of their attorney, Mr. Miner, refused to produce their books showing the amount of sales since February 5th, and, under the like advice, refused to answer any questions concerning their business or sales since that -date. They had bought other goods, mingled them with their old stock, and sold them. This conduct was in plain violation of the contract, and, if the result depended upon this, it would become a serious question whether it would not defeat recovery. This conduct, however, was clearly waived by subsequent proceedings. Negotiations were subsequently renewed. Plaintiffs, by appointment, went to Detroit, and, at the request of defendant, made a statement of their business, submitted it to the defendant, and offered to be questioned under oath. These things involved an expenditure of time and money, and, under our decisions, operated as a waiver of this and other defenses which are claimed. Burnham, v. Interstate Casualty Co., 117 Mich. 155, and authorities there cited. For the same reason, if there were any defects in the proofs of loss, they were waived. The court may have given a wrong reason, but its conclusion was correct. The result will not, therefore, be disturbed.

Other objections are raised, but, as they come within the above determination, we refrain from discussing them!

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    STEVENSON v. DETROIT & MACKINAC RAILWAY CO.
    1. New Trial — Refusal—Bill of Exceptions.
    Under Act No. 134, Pub. Acts 1893, providing that there may be incorporated in the bill oí exceptions a record of the proceed- » ings on motion for a new trial, including the reasons for the refusal thereof, and that exceptions may be taken and error assigned thereon, the action of the trial court in refusing a new trial cannot be reviewed on appeal, if the bill of exceptions does not contain the order of refusal, the. reasons therefor, and exceptions to the decision.
    2. Verdict — Coercion of Jury.
    A verdict is not obtained through coercion or restraint because rendered as directed by the court, who charged the jury on Saturday afternoon that he was going home on the next train, and would adjourn court until Monday morning, and that, if they agreed upon a verdict, they should write it, and seal it in an envelope, and hand it to the sheriff, to be delivered to the judge when the court convened on Monday, and should then go to their homes, and return to their places in the court room on Monday morning.
    3. Sake — Compromise—Evidence—Appeal—Review.
    ' An objection that the evidence shows the verdict to have been a compromise verdict cannot be considered on appeal where the record does not purport to contain all the evidence.
    4. Same — Impeachment—Statements of Jurors.
    An affidavit stating that the affiant was informed by several of the jurors that the jury at first stood three in favor of a verdict for the plaintiff and nine for the defendant, but that they were induced to agree upon a verdict for the plaintiff from the fact that, if they failed to do so, they would be compelled to stay over night in the jury-room, cannot be used to impeach their verdict. .
    Error to Iosco; Simpson, J.
    Submitted October 19, 1898.
    Decided December 6, 1898.
    Case by Hattie Stevenson against the Detroit & Mackinac Railway Company to recover the value of a horse killed on defendant’s track. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Albert E. Sharpe, for appellant.

      Charles A. Jahraus, for appellee.
   Long, J.

Defendant’s road runs through the plaintiff’s farm. On May 7, 1896, plaintiff’s horse was struck by defendant’s train, and killed. Defendant contended bn the trial that the horse was struck on the highway. Plaintiff contended that it was struck and killed on defendant’s right of way, inside the cattle-guards. Defendant’s right of way was not fenced; and the only question was whether the horse was in the highway, or not. Plaintiff recovered a judgment for the value of the horse at $75, and defendant brings error.

A record containing 28 pages is presented, which apparently contains a large part of the testimony, and also the charge of the court. It does not show any objections made, nor any exceptions taken, on the trial. Following the 28 pages is found a motion for a new trial and certain affidavits in support of the motion, as well as the assignments of error. The reasons given for asking a new trial are:

1. That the verdict was not in accordance with the evidence.

2. That the jury were induced to render a verdict for the plaintiff by improper motives, and by matters other than the consideration of the law and the evidence in the case.

3. That new and important evidence has been discovered.

All the assignments of error, except those relating to the charge, are based upon the order of the court denying the motion for a new trial; yet the record does not contain any such order. The record is entirely silent as to the order made by the court in the premises, or the reasons why the court denied the motion. There is nothing in this record for this court to review upon the motion for a new trial. Under Act No. 134, Pub. Acts 1893, providing that there may be incorporated in the bill of exceptions a record of the proceedings on motion for a new trial, including the reasons for the refusal thereof, and that exceptions may be taken and error assigned thereon, the action of the court cannot be reviewed in the absence from the bill of the reasons therefor and exceptions to the decision. McRae v. Garth Lumber Co., 102 Mich. 488.

The assignments of error upon the charge may be considered. It appears that the court charged the jury at 2:30 o’clock on Saturday afternoon. Among other things, he said to the jury:

“Now, gentlemen of the jury, I am going home on this train; and if I go home on this train, and your verdict is not rendered, I shall adjourn this court until next Monday morning,.at 9 o’clock; and I am going to give you this envelope and this piece of paper, and, if this court adjourns before your verdict is rendered, you will all write your verdict, — you will write your verdict on this paper, whatever you find, and all sign it, fold it up, and put it into this envelope, and seal it tight, if you agree, and hand it to the sheriff, to be delivered to me when court convenes on Monday; and you will return here Monday, and take' your places in the court-room, and I will open your verdict,- and receive it. You understand; I don’t want any mistake about this. I say, if the court is adjourned before you agree, you will write your verdict, — just what you find, — all sign it right underneath the verdict, fold it up, and put it in here, and seal it, and hand it to the sheriff, and go to your homes, and return here Monday morning, at 9 o’clock, and I will.”

It is claimed that the verdict was obtained through coercion and restraint of the jury. We cannot agree with this contention. The jury sealed their verdict, and returned it into court on Monday morning, as directed by the court.

But counsel says that the verdict was a compromise, as there was no testimony in the case that the horse was worth less than $100. This we are unable to ascertain, as the record does not purport to contain all the evidence.

Counsel also contends that this is shown by the affidavit used in the motion for a new trial. All this affidavit shows is that the affiant was informed by several of the jurors in the case that the jury at first stood three in favor of a verdict for the plaintiff and nine for the defendant, but that said jurors were induced to agree from the fact that, if they failed to so agree, they would be compelled to stay over night in the jury-room. If the affidavits of the jurors had been presented, they could not be used to impeach their verdict; and yet counsel contends that an affidavit made by one to whom the jurors communicated the facts may be used for that purpose. The facts set up in the affidavit are purely hearsay, and the affidavit cannot be used for the purpose presented.

The judgment must be affirmed.

The other Justices concurred.


text:
    ZINSER v. ANDERSON.
    Deeds — Cancellation—Evidence.
    A trust deed will not be set aside on the ground that it was made under duress or undue influence, or without knowledge that it was irrevocable, where an affidavit of the grantor two years after its execution, made in answer to a petition by his wife for an allowance of alimony, recites that, shortly after his marriage, he and his wife freely and voluntarily executed and delivered a deed of a large portion of his property in trust, to go to his children after his death, and that his only interest in the property is the net income derived therefrom.
    Appeal from Kent; Adsit, J.
    Submitted October 20, 1898.
    Decided December 6, 1898.
    Bill by John M. Zinser against William H. Anderson and others, to set aside a trust deed. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      L. E. Carroll (Taylor & Eddy, of counsel), for complainant.
    - Fletcher & Wanty, for defendant Anderson.

      Thompson & Temple, for other defendants.
   Long, J.

This bill is filed to set aside a certain trust deed made in September, 1892, by complainant and his wife to defendant Anderson, and to have the property re-conveyed to complainant, on the ground that the deed was obtained by coercion and false representations in regard to the income of the property, and the representation that the complainant could at any time get the property conveyed by deed back; and he alleges that he had not learned until a short time prior to the filing of the bill that there was no provision in the trust deed which allowed him to have a reconveyance.

It appears that the complainant and his wife, Agatha, owned a considerable amount of property when she died, on March 28,1892. Her estate amounted to some $16,000, and she left it in the hands of a trustee, to be divided among her nine children at the death of her husband, but provided that, in the event that he should give any considerable amount more, by will or otherwise, to any child, such an amount should be deducted from the share of that child só that the shares of their children from the two estates should be as nearly equal as possible. On the 6th day of September after the death of his wife, complainant remarried. The children were all opposed to this marriage; and, according to the testimony of complainant, they all treated him very badly when they discovered the marriage was to take place. The next day after the marriage, the children filed a petition in the probate court for a general and special guardian, alleging that the complainant had been drinking, that he was partially insane, and was under the influence and control of a woman of bad repute (meaning the wife of complainant), and that he-was squandering his property. The citation was served on complainant. A meeting was thereafter had between him and the attorneys for the children, when it was agreed a trust deed should be made to defendant Anderson, by which the property should go to complainant’s children after his death. The deed in question was thereupon drawn, and executed by complainant and his wife. This deed provides that the second party, Anderson, shall have full control and management of all of said property,, and receive the rents and profits arising therefrom, during the natural life of John Zinser (complainant); that Anderson shall pay out of the rents and profits .all taxes assessed on the property, all necessary insurance and repairs, and retain from said income a reasonable amount for his time and services in the management of the property, paying any and all balances that may remain at the end of each year to complainant for and during the period of his natural life; that, immediately after the death of complainant, the trustee shall sell and dispose of the property, and divide the proceeds among the children of complainant, the proportion to be paid to each being specifically set forth in the deed.

"We think the testimony fairly shows that the complainant fully understood this deed, and the effect it had upon his property, as well as the proportion which each of his children would take. His counsel contend that the deed was executed (1) under duress; (2) while complainant was in poor health, and under the undue influence of others, and without legal advice; (3) without knowledge on the part of complainant that it was irrevocable. After the execution and delivery of the deed, the trustee entered upon the execution of the trust, and has continued to discharge those duties since. After the delivery of the deed, complainant and his wife moved to Traverse City, but did. not live happily together. She filed a bill against him for divorce, and petitioned for an allowance of alimony, setting up in the petition that John M. Zinser was worth from $75,000 to $80,000. Mr. Zinser answered this bill, and resisted the payment of alimony. In answer to the petition he filed his own affidavit. This affidavit is dated November 16, 1894, being more than two years after the trust deed was delivered. In that affidavit he stated that it was not true that he was worth $75,000 to $80,000; “that it is true that, at the time of his marriage to said complainant, he had considerable property; and that, shortly after said marriage, said complainant and this deponent freely and voluntarily executed and delivered a deed of a large part or portion of said property, in trust, to go to defendant’s children after his death, and that the only interest said defendant has in said property is the income derived therefrom after paying taxes and other expenses; that' said property consists of a large block situated in Grand Rapids; that the same is now almost unproductive; and that this deponent has not for six months last past derived any income or returns from said property.”

There is no evidence on this record of a convincing nature that this deed was executed under duress, while complainant was in poor health or laboring under great mental excitement, or that it was procured by undue influence ; and the affidavit of the complainant, made more than two years after the deed, shows conclusively that it was made freely and voluntarily. This affidavit also rebuts any theory that counsel now advance that the complainant did not know that the deed was irrevocable.

There is some intimation in the brief of counsel for complainant that the trustee has not faithfully discharged the trust imposed. We find no proof in this record sustaining such a contention. He has so far accounted fully for the income of the property.

The court below very properly dismissed complainant’s bill. That decree will be affirmed, with costs.

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


author: Grant, C. J.

text:
    BIRDSALL v. BIRDSALL.
    Appeal — Decree on Conflicting Testimony.
    Where a chancery case turned entirely upon the credibility of the witnesses for the respective parties, whose proofs were in direct conflict, the finding of the circuit judge, who saw and heard the witnesses, was not disturbed.
    Appeal from Kent; Grove, J.
    Submitted October 20, 1898.
    Decided December 6, 1898.
    Bill by William H. Birdsall against Selina Birdsall for the specific performance of a parol contract for a lease of land. From a decree dismissing the bill, and granting defendant affirmative relief upon her answer in the nature of'a cross-bill, complainant appeals.
    Affirmed.
    William Birdsall died, testate, February 22, 1891, leaving a widow, the defendant, and five sons, including the complainant. He had made advances to all his sons, and, by his will, bequeathed the personal property to his wife, and the land, a farm of 80 acres, to her in trust, to have the use, income, and profit thereof for life; and also giving her the power to sell it if necessary for her support, and use the proceeds for that purpose. At her death, the farm, or, if sold, all the proceeds thereof unused, was to be divided among his five sons, in equal parts, except as to one, who, on account of the advancement to him, was to receive $1,000 less than each of the others. Previous to his death, he had leased the farm for two years to complainant, at a rental of $300 per year. After his death, and on April 1, 1891, defendant executed a new lease to complainant, for three years for the same rental, on which he was- to be allowed three dollars a weeli for his mother’s support. Complainant alleges that he was running behind, and in 1893 informed defendant that he should leave the farm, and that thereupon he made with her the agreement which he now seeks to enforce. This agreement is set forth in the bill of complaint in the following language:
    “Said Selina Birdsall proposed to your orator that he try the experiment of raising fruit upon a portion of said farm, and did then and there orally agree with your •orator that in case he would remain on said farm, and renew his said lease, and would buy, pay for, plant, and care for, until their bearing period was reached, such a quantity of peach, pear, and cherry trees as he, your orator, saw fit to, that the same might be set out on the said farm, and should belong to, and be the absolute property of, your orator, and that she would renew her said lease to your orator from time to time during her natural life, for the same rental and on the same terms as the first lease so made from her to him as aforesaid, and that upon her death the said orchard should be the property of your orator.”
    Complainant alleges that he performed the agreement, and set out some 982 fruit trees, which cost $166, and took care of them until he was ejected from the premises, in 1897. He alleges that this agreement was made in the fall of 1893.
    The defendant answered, denying all the material allegations of the bill, except that she ordered herself 100 cherry trees to be delivered in the spring of 1894, and asserts that she objected to the planting of the peach and pear trees.
    Proofs were taken in open court, and the learned circuit judge found the facts and entered a decree as follows:
    “That the complainant did, in the spring of 1894 and spring of 1895, set out upon the land of said defendant, Selina Birdsall, described in the bill of complaint filed herein, a cherry, peach, and pear orchard, of which there are now living and growing upon said premises 158 pear, 105 cherry, and 667 peach trees, of which peach trees 420 were set out in the spring of 1894, and 247 in the spring of 1895; that the value of said orchard is from $600 to $1,000; that in the spring of 1893 there were some peach trees heeled in upon the premises of said defendant, which said defendant supposed said complainant intended to set out upon her said place, and that, so supposing, she did at that time serve written notice upon said complainant, forbidding him from setting out said peach trees upon her said premises, and that the said complainant did thereafter set the same out upon a farm of his own, in the town of Walker, and disclaimed having any intention of setting the same out upon the premises of said defendant; that in the fall of 1893 the said defendant, at the suggestion of a fruit-tree agent, who was then at her house, ordered 100 cherry trees, to be delivered in the spring of 1894, and that at the same time, but without the knowledge of said defendant, said complainant ordered the said pear trees and the greater part of the said peach trees, and said trees, including said cherry trees, were delivered to said complainant in the spring of 1894, and were brought by him to the premises of said defendant, and there heeled in, and the said complainant thereupon commenced to plow and prepare the ground for the setting of said trees; that the first notice or knowledge that said defendant had of the purchase of said trees by said complainant was when they were so heeled in, and the first notice or knowledge that said defendant had that said complainant intended to set said trees, other than said cherry trees, upon her said premises, was when he began to plow and prepare the ground therefor; that she at that time, and before he had set any of said trees, inquired of him, and was informed by him that he was going to set said peach and pear trees upon her land, and she thereupon forbade him from so doing, and told him not to do so; that he at the same time asked her to sign a paper saying the trees should be his, which she refused to do, and informed him, if he set them on her land, he did so at his own risk; that complainant proceeded to set said orchard, without the consent of said defendant; and that again, in December, 1894, the defendant, hearing that said complainant intended to set more trees upon her said premises, served another written notice upon him, forbidding him from so doing, and, after receiving such notice, complainant proceeded to set other and additional trees in said orchard, to the number of about 250 peach; and that defendant has never given her consent to the setting of any of the trees in the orchard, claimed by complainant herein, except the said 100 cherry trees, which defendant did not have the money to pay for at' the time they were delivered, and requested complainant to pay for the same, he being indebted to her at that time, and she expecting to apply the amount paid therefor, namely, $30, upon said indebtedness, and is still willing so to do. I further find that the said complainant is indebted to the said defendant upon various notes to the ■sum of $500 or thereabouts, not including the rent from the 1st of April, 189?.
    “The principal reason that said defendant objected to the setting of said trees was that she expected that after her death the premises would go, in accordance with her husband’s will, to her five sons, and she feared, if the orchard was set upon the premises, that it might lead to disagreement and difficulty, and possibly to litigation, between her sons after her death.
    “It is therefore hereby ordered, adjudged, and decreed that the complainant’s bill be, and the same is hereby, dismissed, with costs to said defendant to be taxed. And the said defendant, Selina Birdsall, having prayed affirmative relief in her answer in the nature of a cross-bill filed herein, and due consideration thereof having been had, it is further ordered, adjudged, and decreed that the said defendant, Selina Birdsall, is entitled to the possession of the premises described in said bill of complaint, and that the said complainant restore to the said defendant, Selina Birdsall, the possession of the same upon her demand, and, in case of failure so to do upon demand, that a writ of restitution of the possession of said premises be issued from this court, in favor of said defendant, Selina Bird-' sail, and against said complainant, upon proper application being made therefor; provided, that, at her option, said defendant, Selina Birdsall, may institute summary proceedings to recover the possession of said premises, the same as though the writ of restitution had not been decreed herein.”

      Everett D. Comstock (Birney Hoyt and 8. D. Clay, of counsel), for complainant.

      Walker & Fitzgerald, for defendant.
   Grant, C. J.

(after stating the facts). After the date of this alleged agreement, complainant asked defendant for a lease for six years. She refused, and on April 10, 1894, made a new lease for three years. This lease is in the usual form, and contains no reference whatever to the alleged agreement. It provided that the death of the defendant should terminate the lease. She was then over 70 years of age, and testified that she did not anticipate that she should live long, and feared that the planting of the orchard would make trouble among her sons. We find it unnecessary to determine whether the proofs on the part'of the complainant show a definite, complete, and certain contract, capable of enforcement. The proofs of the respective parties are in direct conflict, and the conclusion reached by the circuit judge depends upon the credibility to be given to the witnesses. The circuit judge saw them, heard their testimony, and made a finding of facts. There was ample evidence on the part of the defendant to sustain the finding. We see no reason to discredit the conclusion reached by the circuit judge. A detail of the evidence would be profitless, and would neither serve any good purpose nor form any precedent in other cases. We think the judge reached the correct conclusion, and the decree is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    FREEBORN v. LA LONDE.
    Summary Proceedings — Action by Lessee.
    A lessee of land to whom the owner refuses possession under the lease cannot maintain summary proceedings under 2 How. Stat. § 8295, to recover such possession, — at least not until the estate of the owner, as a tenant at sufferance, has been determined by notice to quit.
    Case made from Chippewa; Steere, J.
    Submitted October 20, 1898.
    Decided December 6, 1898.

      Summary proceedings by William J. Freeborn against Charlotte La Londe and John F. Moloney to recover the possession of lands. The circuit judge directed a verdict for defendants, and complainant assigns error.
    Affirmed.

      John W. Shine (L. O. Holden, of counsel), for appellant.

      M. F. McDonald, for appellees.
   Montgomery, J.

This is a summary proceeding to recover possession of a store building. The proceeding was commenced before a circuit court commissioner, and on appeal to the circuit court a verdict was directed for the defendants, and complainant assigns error.

The defendant Charlotte La Londe is the owner of the premises in question. The evidence adduced on the part of the complainant tended to show that on the 18th of January, 1898, Mrs. La Londe, through her son acting as her agent, made a lease of the premises in question to complainant for one year, commencing February 1, 1898; that, before he acquired possession, Mrs. La Londe leased the premises in question to the defendant Moloney, who moved in and took possession on the 32d of January. On the 1st of February, complainant demanded possession, and, upon defendants’ refusal, instituted this proceeding.

At the close of the testimony, the circuit judge charged the jury that the statute does not contemplate putting the tenant into possession of lands which he has leased, and which the landlord refuses to give to him, and that the lessee of lands who has not been in possession of them cannot institute proceedings under the statute to compel the landlord to give him possession, and directed a verdict for the defendants. It is contended that this was error; that the lessee, although not let into possession, has such an interest in the premises as will entitle him to recover possession; and, second, that such possession can be recovered in a summary proceeding under the statute. We find it unnecessary to determine the first of these propositions. The statute (2 How. Stat. § 8295) limits the remedy by summary proceedings. Unless the facts of this case bring it within the provisions of that statute, the remedy of the complainant must be either by an ^action for damages or ejectment.

But two of the subdivisions of the statute can by any stretch be said to have any application. They are the first and fourth, which read as follows:

“When any person shall hold over any lands or tenements after the time for which they are demised or let to him, or to the person under whom he holds, or contrary to the conditions or covenants of any executory contract for the purchase of lands or tenements, or any lease or agreement under which he holds, or where rent shall have become due on any such lease or agreement, and demand of the rent or possession of the premises is waived therein in writing, and not included in the printed form of the lease or agreement.”
“When any tenant at will or by sufferance shall hold over after the determination of his estate by a notice to quit, as provided by law.”

This case does not fall within the first subdivision. The defendant La Londe is not holding over after the time for which the premises were demised or let to her, or contrary to the conditions or covenants of a contract for the purchase of lands or tenements, or of any lease under which she holds. It may be contended that, by her failure to deliver possession at the time stated, she, through her tenant, Moloney, is holding the premises contrary to her agreement to let or lease. But it is not a lease under which she holds. She holds and has held possession as the owner of the title. She was not vested with possession under this lease, and cannot be said to hold under this lease, or to have ever held thereunder. This distinguishes this case from Gale v. Eckhart, 107 Mich. 465, in which case the grantor reserved the right of possession until April 1, 1894, and became a tenant of the purchaser.

Counsel contend that the defendants became tenants .at sufferance when possession was withheld. If this be granted, it does not aid complainant. If the defendants are tenants at sufferance, they are not holding over “after a determination of their estate by a notice to quit.” It is contended that a person holding over at sufferance is not entitled to a notice to quit unless he is permitted to retain possession by the owner or one entitled to possession. The cases of Allen v. Carpenter, 15 Mich. 25, and Benfey v. Congdon, 40 Mich, 283, are cited to support this contention. This is unquestionably the doctrine of the cases cited, but in these cases the complainant was in each case entitled to invoke the statute by virtue of other provisions. Neither case is authority for the position that a summary proceeding may be instituted against a tenant at sufferance unless he holds .over after notice to quit, unless, under other provisions of the statute, jurisdiction is conferred. The statute cannot be extended by construction. 9 Enc. Pl. & Prac. 45.

The circuit judge was right in directing a verdict for the defendants.

Judgment affirmed.

The other Justices concurred.


text:
    LAMB v. RATHBURN.
    1. Settlement — Conflicting Claims.
    A settlement of conflicting claims, made with full knowledge of the facts, is conclusive upon the parties.
    2. Appeal — Questions not Raised Below.
    Where, in an action between landlord and tenant, the claim is. made that a payment of certain moneys under the lease was through mistake, and the case is presented to the jury upon that theory, the further claim that the payment was under duress, asserted for the first time on appeal, cannot be considered.
    3. Landlord and Tenant — Settlement—Duress.
    A settlement between a lessor and lessee of the amount due for rent is not void for duress because, by the terms of a chattel mortgage given by the lessee to secure the rent, he was prohibited from moving the mortgaged goods to another town, ship, in which he had rented another farm, where nothing was said during the settlement about the mortgage, nor any statement made by the lessee that he paid the disputed amount in order to release his goods.
    4 Same — Contracts—Consideration—Evidence.
    By the terms of a five-year lease, the tenant was to pay an annual rent of $450. At the end of the first year, the tenant informed the landlord that he would be obliged to give up his-lease, but consented to remain upon the landlord’s promising a reduction of $50 in the rent. The $50 was deducted each year until the last year. The lease required the tenant to secure the rent each year by a chattel mortgage. The landlord promised the same reduction for the last year if the wife of the tenant would sign the mortgage, which she did accordingly. Held, that the agreement to reduce the rent was not without consideration.
    Error to Livingston; Smith, J.
    Submitted October 21, 1898.
    Decided December 6, 1898.

      Assumpsit by Charles Lamb against Adelbert Rathburn to recover an amount due under a lease. From a judgment for defendant upon the allowance-of a set-off, plaintiff brings error.
    Reversed.
    In January, 1892, plaintiff leased the defendant his farm for five years. The rent was $450 per year, but, if paid on the 1st day of March each year, to be $400. The lease also required defendant to execute to plaintiff, on or before the 1st day of March each year, a chattel mortgage upon the growing crops, and other personal property of sufficient value to secure payment of the rent for the current year. Mortgages were executed accordingly. At the expiration of the term, the parties settled, defendant paying plaintiff $564.19. Defendant agreed to furnish clover seed for seeding the ground put in to wheat. At the time of the settlement, a dispute arose as to the amount of land to be thus seeded, and for which defendant had not provided the seed. Defendant gave an order to plaintiff on one Simmonds for the clover seed, the amount to be subsequently determined. The cost of this seed was $23, for which plaintiff brought this suit in justice’s court. Defendant admitted his liability for $23, but claimed a set-off for $50. The jury allowed' the set-off, and rendered a verdict for defendant for the difference.

      Clarence Tinker, for appellant.

      Louis E. Howlett, for appellee.
   Grant, C. J.

(after stating the facts). 1. At the settlement, defendant insisted that he owed the plaintiff $514.19. The dispute between them was over $50. It is unnecessary to state details. The settlement was made with the full knowledge of the claim of each party in regard to it. There was no mistake. It was therefore error for the court to instruct the jury that, if defendant paid the money by mistake, he was entitled to recover it back.

2. Defendant urges that he paid it under duress, and cites Hackley v. Headley, 45 Mich. 569. A complete reply to this claim is that this theory of the case was not submitted to the jury. The charge of the court is given in ■ full, and does not refer to such theory. But, under the. facts, plaintiff made no threat, and, under his claim, stood simply upon his legal rights under the lease and mortgages. Defendant testified he (plaintiff) “insisted that this $50 should be paid. I insisted that, it should not. Mr. Lanab went away to work. I went after him. He came back. I told him to come back, and we would fix it up. I then paid him the amount.” On redirect examination he testified: “I paid it so that I could get my stuff released. I had taken Jubb’s farm, and I couldn’t move.” By the terms of the mortgage, defendant was prohibited from moving the mortgaged goods out of the township. Nothing was said during the settlement about the mortgage, or any statement made by defendant to plaintiff that he paid the disputed amount in order to release his goods. Under this state of facts, there' was no duress.

3. Defendant gave evidence tending to show that during the first year his crops were poor; that he was unable to pay the rent, and that he informed plaintiff that he should leave the farm and give up the lease; that plaintiff promised him that, if he would remain, he would reduce the rent $50 per year; that defendant accepted the proposition; that for four years the $50 was deducted, which plaintiff admitted; that, when the chattel mortgage 'was given during the last year, plaintiff procured the signature of defendant’s wife to the mortgage, thereby obtaining a security which the lease did not provide for; that the mortgage was for the $450; and that, in consideration of his wife’s signature, plaintiff promised to deduct the $50 when the last payment was made. It appears to have been deducted for the other years when the first payment was made. Under these circumstances, we think there was evidence of a consideration for the reduction of the rent. Moore v. Detroit Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489 (41 Am. Rep. 723); Lawrence v. Davey, 28 Vt. 264; Connelly v. Devoe, 37 Conn. 570; Rollins v. Marsh, 128 Mass. 116; Clark, Cont. 187.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    LAWTON v. RICHARDSON.
    Labor Debts — What Are — Store Employés.
    Debts due to employés in a dry-goods store, who act as department managers and salesmen, and perform such services as the unpacking of goods, marking them and placing them upon the shelves, sweeping out the store, and keeping the stock in order, are debts for labor, within the meaning of 3 How. Stat. § 8749m, making labor debts preferred claims under certain circumstances.

    Appeal from Wayne’; Donovan, J.
    Submitted October 21,1898.
    Decided December 6, 1898.
    Bill by Edward Lawton and others against Henry W. Richardson, John Phillips, Thomas E. Hall, William B. Hall, and Emma H. Hall, to enforce certain labor claims under 3 How. Stat. § 8749o. From a decree for complainants, defendants Hall appeal.
    Affirmed.

      Hatch, Hatch & Chapman, for complainants.

      A. G. Pitts and J. G. Dickinson, for appellants.

       On the question who are employes, laborers, or servants, within the meaning of statutes giving preferences, there is an extensive note to Tod v. Kentucky Union R. Co., (C. C. App.) 18 L. R. A. 305.

   Moore, J.

Henry W. Richardson was a dry-goods merchant in Detroit. The other defendants are his creditors, who took possession of some of his stock, either as mortgagees or attaching creditors. Mr. Richardson at this time owed complainants, who were in his employ. They claimed the debts due them were owing for labor, within the meaning of 3 How. Stat. § 8749m. By grouping their claims together, they amounted to more than $100. It is their claim that their hiring by Mr. Richardson, and the subsequent transactions connected with the closing of his business, entitled them to the relief provided by sections 8749m, 8749o. After hearing the proofs in open court, the circuit judge found the averments of the bill to be true, and rendered a decree in favor of complainants.

The important question involved is: Were there debts owing for labor, to the amount of $100, due complainants ? The appellants say not, citing. Jones v. Avery, 50 Mich. 326; Black’s Appeal, 83 Mich. 520; Sayles’ Petition, 92 Mich. 354; Clark’s Appeal, 100 Mich. 448. The record shows Mr. Richardson proposed to engage in business in Detroit, and advertised for a salesman and manager for a dry-goods store. Mr. Lawton met him at the Russell House, and was told by Mr. Richardson that he had $18,-000 with which he was going’to buy goods. Mr. Lawton hired out to him July 25th, for $75 a month, expecting to be the manager of the store. He went to work July 27th, helping to get the store ready for business. In August, Mr. Lawton and Mr. Richardson went East, and bought the goods. August 22d, Mr. Lawton returned to Detroit, helped unpack the goods, and helped about the marking of the goods, putting them upon the shelves, and getting the stock ready for the opening day. After ’that he did the work of an ordinary clerk, helping about selling the goods, sweeping out the store, and doing the general work of the store. Mr. Richardson, at the time of the employment, asked Mr. Lawton to furnish $250 as security for the proper performance of his work. It was furnished to Mr. Richardson, and never returned. It does not form any part of the decree rendered by the circuit judge. Mr. Burkard also answered the advertisement, and had an interview with Mr. Richardson at the Russell House, when he was told substantially the same thing by Mr. Richardson that had been told Mr. Lawton. He also was asked to furnish $250, but did not do so, and was.hired to help in the dress-goods department, at $14 a week. The keys of the store were given to him by Mr. Richardson, and at his direction he opened the store in the morning early enough so the carpenters could go to work, got a carpenter to make shelving and railing, and gave instructions about putting in the store a desk, shelving, and counters. He opened up 60 or 70 cases of goods when .they came, and carried them into the store; sometimes working at night to do so. He also helped mark the goods, and put them on the shelves, and helped sweep the store every morning, and helped about keeping the stock in order, including the display of the goods outside, and had charge of the dress-goods department. The other complainants were clerks, working for five and six dollars a week.

The store was closed about September 24th by the creditors, either by commencing replevin and attachment suits, or by mortgagees taking possession. Emma H. Hall is the mother-in-law of Mr. Richardson, and Thomas E. and "William B. Hall his brothers-in-law.

The circuit judge found that, as to the work done by Mr. Lawton when in New York, it was not the work of a laborer, within the meaning of the statute; but as to the other work done by him, and the work done by the other complainants, it was labor, within the meaning of the statute. It is apparent from what -has already appeared that nearly all the labor done was not intellectual or professional in its character, nor was it of an especially skillful kind. It was, in the main, manual labor, and of such a character as the statute was intended to protect. Black’s Appeal, 83 Mich. 520.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    AVERY v. BURRALL.
    1. Sale — Guaranty—Heating Plant — Management—Evidence.
    Plaintiff guaranteed the heating capacity of certain boilers sold by him to defendant when operated with soft coal. In an action for the purchase price, defendant claimed that the boilers required hard coal to be used, and sought to recoup her damages. Plaintiff contended that the failure of the boilers to give satisfaction was due entirely to mismanagement on the part of defendant, and introduced, as bearing upon this issue, the testimony of witnesses who were successfully operat. ing the same kind of boilers with soft coal. Held, that the testimony was competent for the purpose offered.
    2. Same — Recoupment—Burden of Proof.
    The burden of showing that a steam-heating plant does not meet the requirements of the contract of purchase is upon the vendee in an action against her to recover the balance of the purchase price, where she has accepted and used the plant, and seeks to recoup in the action the amount of her damages for its failure properly to perform the work.
    Error to Jackson; Peck, J.
    Submitted October 31, 1898.
    Decided December 6, 1898.

      Assumpsit by Howard H. Avery and another against Emily M. Burrall for installing a steam-heating plant. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Blair, Smith & Townsend (Wilson & Cobb, of counsel), for appellant.

      John W. Miner ( Grove H. Wolcott, of counsel), for appellees.
   Moore, J.

Plaintiffs recovered a judgment for putting a steam-heating plant into the Webb Block, in Jackson, and for doing extra work connected therewith, for the defendant. Those portions of the contract necessary to appear here for a correct understanding of the case read as follows:

“That the parties of the first part hereby agree to construct the steam heating, gas fitting, and plumbing in the Webb Block, now under construction on the west side of Mechanic street, in the city of Jackson, as hereinafter specified, for the sum of $1,846.55, to be paid by the party of the second part in such sums or amounts up to 90 per cent, of the cost of materials and labor that may be placed on the premises, or at the place of business of the parties of the first part, the remainder to be paid at the completion of work contracted to be done; said parties of the first part to furnish a good and sufficient bond, in the sum of §2,000, guaranteeing the fulfillment of the contract, and the successful heating of said block to a temperature of 70 degrees Fahrenheit when tested thermometers register a temperature of 10 degrees below zero on the outside. The conditions of this agreement are as follows: * * * Steam Boilers: Furnish and set up in boiler-room three No. 28 D. H. & L. steam boilers for burning soft coal, connected in battery, so that any one or all can be used at the same time, with complete sets of trimmings and firing tools. * * * Guaranty: We guarantee all material and workmanship used in the construction of this heating plant to be the best of their respective kinds, and the apparatus, as a whole, to be capable of warming all rooms in which radiators are placed to the temperature of 70 degrees Fahrenheit when the temperature is 10 degrees below zero on the outside, provided that coal suitable to the requirements of the heaters is used, and the heaters properly managed.”

During the progress of the work, defendant paid plaintiffs $1,800. After plaintiffs claimed the plant was completed, defendant used it, but claimed it did not meet the requirements of the contract. The parties were unable to arrive at a settlement, and this suit was brought. The declaration set up the making of the contract by the parties, its completion by the plaintiffs, and the failure of defendant to pay. It also contained all the common counts in assumpsit. Defendant pleaded the general issue, and gave notice that the plant would not do the work required to be done by the contract; that it was necessary to use hard coal instead of soft coal, at great additional expense, and that the heating system must be changed at great expense; that the work was improperly done, — and claimed damages by way of recoupment to the amount of $2,000. Upon the trial it was the claim of defendant that the boilers would not heat the building when soft coal was used, and that it was necessary to use hard coal. It was the claim of plaintiffs that if the boilers were properly stoked, and the flues properly cleaned, and proper soft coal used, the boilers would perform the work satisfactorily. Both parties gave testimony tending to show the truth of their respective claims.

The first assignment of error necessary to be discussed relates to the admission of testimony of a witness who testified to the successful working of other No. 28 D. H. & L. boilers when burning soft coal. Appellant claims it was error to admit this testimony, arguing that the fact that other like boilers worked well would not prove or tend to prove that these particular boilers' worked well, or that they were not properly treated; citing Second National Bank v. Wheeler, 75 Mich. 546. It is undoubtedly true, as stated in the case just cited, that it would not follow that, because one machine did good work, another similar to it would also do good work, and the court so stated when he admitted the testimony, and he allowed the testimony only for the purpose of showing the kind and character of the fuel necessary to be used, and the kind and character of management necessary. We think the testimony, with the limitation put upon it by the judge, was competent. It was the claim on one side that the boilers were properly managed, and upon the other side that they were not, and that question was passed upon by the jury in arriving at their verdict.

The judge, after charging the jury about the questions involved in the case, charged them as follows:

“Now, gentlemen, with these preliminary instructions upon that branch of the case, you will be prepared to take up or consider the question as to whether or not this .guaranty has been, in either of its respects, violated by the plaintiffs, — be able to take up and determine whether or not the guaranty of condition, quality, and efficiency was true or false. Upon this branch of the case, the defendant, Mrs. Burrall, has the burden of proof, and is not entitled to prevail unless she has satisfied you by a preponderance of the evidence that the guaranty was not true, — that it was broken. Now, this involves proof of these propositions, which are included in the conditions of the guaranty: First, that the material and workmanship used in the construction of said heating plant was not the best of their respective kinds, as provided in the contract; second, that the apparatus as a whole is not capable of warming all the rooms in the building to a temperature which the guaranty provides, when suitable coal is used and the heaters properly managed. Now, gentlemen, if neither one of these propositions has been established by the defendant by a preponderance of the evidence, you should consider that the defendant has failed to establish her contention upon this branch of the case, and make up your verdict accordingly. On the other hand, if one or both of these propositions has been established by the evidence, and a preponderance of it, you should consider the guaranty as untrue, — broken,—and the defendant would be entitled to be credited in your verdict with the damages which actually and necessarily resulted from that cause. Now, gentlemen, if the defendant prevails upon this branch of the case, you should award her such damages as, under the evidence and the rules of law now given you, she would be entitled to.”

The defendant says this case is not the ordinary case of warranty upon sale of an article, but is one of condition clearly expressed by the contract upon which the suit is brought, and a substantial performance of such contract must be shown before plaintiffs can recover, and that the burden of proof is with plaintiffs to show the plant is properly constructed, and meets the requirements of the contract. If there had been no acceptance of the work by defendant, there would be much force in this contention; but the defendant has taken possession of the plant, and used it, and still uses it. When called upon to pay for it, she assigns as a reason why she should not do so that it does not perform its work as it ought under the contract; that she has been damaged by this failure; and seeks to recoup-in this action the amount of her damages. To establish this defense requires proof. Having taken the property and used it, manifestly she should pay for it, unless there-is some legal reason which she can show which shall relieve her from that duty. The rule is stated in Benjamin on Sales (section 564) as follows:

“Although a man may refuse to perform his promise till the other party has complied with a condition precedent, yet, if he has received and accepted a substantial part of that which was to be performed in his favor, the condition precedent changes its character, and becomes a warranty or independent agreement, affording no defense to an action, but giving right to a [counter] claim for damages. The reason is that it would be unjust, under such circumstances, that a party who has received a part of the consideration for which he bargained should keep it, and pay nothing, because he did not receive the whole. The law, therefore, obliges him to perform his part of the agreement, and leaves him to his action of [or counterclaim for ] damages against the other side for the imperfect performance of the condition.”

We think the court did not err in his statement of the rule. 5 Am. & Eng. Enc. Law (2d Ed.), 26, note, “Recoupment;” The Propeller Burlington, 137 U. S. 386; Day v. Raguet, 14 Minn. 273; 1 Greenl. Ev. § 74; Tousignant v. Shafer Iron Co., 96 Mich. 87; Farrell v. School District, 98 Mich. 43; Dillon v. Pinch, 110 Mich. 149.

Error is assigned upon statements of counsel made during the progress of the trial. It would have been well to-have omitted these statements, but they were not of such character as would tend to prejudice defendant’s case. Error is also assigned upon other portions of the charge of the judge. We have carefully examined them, but we do not deem it necessary to discuss them, as we do not deem them well taken.

Judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    LAFLER v. MONROE CIRCUIT JUDGE.
    Civil Damages — Saloon-Keeper’s Bond — Joint Action — Remission of Judgment.
    An action for civil damages against a saloon keeper and his bondsmen is joint, and a remission by plaintiff of so much of a judgment recovered in such action as is in excess of the penalty of the bond inures to the benefit of the principal as well as of the sureties.

      Mandamus by Martha E. Lafler to compel Edward D. Xinne, circuit judge of Monroe county, to enter an order reforming a judgment.
    Submitted November 7, 1898.
    Writ denied December 6, 1898.

      John O. Zabel and C. A. Golden, for relator.

      Watts, Bean & Smith (Landon & Lockwood, of counsel), for respondent.
   Per Curiam.

The plaintiff recovered a judgment in the Monroe circuit court against one Fisher, a saloon keeper, and his bondsmen, in the sum of $5,000. The penalty of the bond was but $3,000. The defendants moved for a new trial, and the court ordered that a new trial be granted unless the plaintiff remit down to the penalty of the bond. The plaintiff, on the hearing of the motion, asked for judgment for $3,000 against the sureties, and for the amount of the verdict, $5,000, against the principal. This application was denied, and mandamus' is now sought to compel the circuit judge to enter such order.

The action is joint. A satisfaction by one defendant would discharge the action. There is no provision of. statute for severing in an action ex delicto, or for entering a judgment in one sum against one defendant, and in a greater sum against another.

The writ is denied.


text:
    BROWN v. JUST.
    1. Wills — Appointment op Executor — Delegation op Power.
    The common-law right of a testator to delegate the power to choose his executor has not been abrogated by statute in. this State.
    2. Same — Construction.
    A clause in a will, “I make no selection of an executor of this will, but leave it for the judge of probate who may be acting when this will becomes operative to make an appointment of some suitable person for that purpose,” confers upon the judge of probate the power of such appointment.
    3. Same — Nomination by Next of Kin.
    3 How. Stat. § 5849, providing that administration of the estate of a person dying intestate shall be granted to the widow or next of kin, or both, or such person as they may request to’ have appointed, if suitable and competent to discharge the trust, does not apply where the deceased left a will authorizing the judge of probate to appoint some suitable person as executor.
    4. Same — Property Rights — When Determined.
    Upon an issue as to whether a testator made a valid delegation to the probate judge of the power to appoint an executor of 'the will, the alleged want of interest of the persons who-support the right of the executor appointed by the probate court as against the nominee of the next of kin cannot be considered; the determination of property rights pertaining, not to the probate of the will, but to the distribution under it.
    5. Same — Executors—Defense of Authority.
    An executor, whether named in the will or by delegated power, has the right to defend in the courts his authority to act.

      Certiorari to Ionia; Davis, J.
    Submitted November 23, 1898.
    Decided December 6, 1898.
    Leonard H. Merrifield, a legatee under the will of Curtis Merrifield, deceased, petitioned for the probate of said will, and the appointment of William J. Just as administrator with, the will annexed. The probate court appointed Charles Brown as executor, and an appeal was taken to the circuit court, where the order of the probate court was reversed and the prayer of the petition granted. Charles Brown brings certiorari.

    Reversed, and order of the probate court affirmed.
    Curtis Merrifield died testate. By his will, he gave to his wife absolutely certain described personal property, and one-half of all his other personal property, the use of the other half for life, and at her death one-half thereof to his nephew, one-fourth to his niece, and the other fourth to one Elizabeth Bradley. He had real estate, of which no mention is made in the will. His wife died on the 9th, and he on the 13th, of January, 1898. He had no children, and the nephew and niece were his sole heirs. On January 24th, the nephew filed a petition for the probate of the will, and the appointment of William J. Just, or some other suitable person, as administrator with the will annexed. The will contained the following clause:
    ‘ ‘ I make no selection of an executor of this will, but leave it for the judge of probate who may he acting when this will becomes operative to make an appointment of some suitable person for that purpose.
    Upon the hearing, the probate court appointed the plaintiff. Defendant took an appeal to the circuit court, which reversed the order of the probate court, and appointed defendant. From this order, the plaintiff has brought the case to this court by the writ of certiorari. Testimony was offered and received to show that the deceased, shortly before his death, expressed a desire that Mr. Brown should settle his estate.

      V. H. & H'. II. Smith (Allen B. Morse, of counsel), for plaintiff in certiorari.

      A. A. Ellis, for defendant in certiorari.

   Grant, C. J.

(after stating the facts). It is conceded that at the common law a testator may delegate to another the power to choose his executor. Two questions are therefore before us for determination: (1) Does the statute take away this power of delegation? (2) Does the language of the will amount to a delegation of the power ?

1. It is urged that our statute makes no provision for the appointment of an executor unless actually named in the will. This point was raised in Hartnett v. Wandell, 60 N. Y. 346 (19 Am. Rep. 194). It was held that the statute of that State did not abrogate the common-law power to delegate the appointment. There is nothing in our statute which shows any intention to abrogate it. There is no difficulty in carrying out the will of the testator in such case, and the probate court contains all the machinery necessary for the purpose. There may be good reasons in the mind of a testator for not making the designation himself. The person appointed by the will, might die before the probate of the will, and for this reason he might choose to repose the power in some prudent person, as the judge of the court having authority in such matters. Such right cannot be held to be abrogated except by express enactment or by necessary implication. Neither is found in our statute.

2. We’are of the opinion that the will conferred upon the judge of probate the power of appointment. One of the definitions of the word “leave” is “to confide, commit, or refer.” Cent. Diet. We find no case involving a provision identical with this. The case, In re Goods of Cringan, 1 Hagg. Ecc. 548, contained the following provision: “It is left to the legatees mutually to appoint two intelligent and trustworthy persons to execute this deed. ” The power to thus appoint was sustained. See, also, State v. Rogers, 1 Houst. 570.

It is, however, urged that the language of the will was used with reference to the statute, which provides that administration of the estate of a person dying intestate shall be granted to the widow or next of kin, or both, or such person as they may request to have appointed, if suitable and competent to discharge the trust. 3 How. Stat. § 5849. This statute applies solely to cases where persons die intestate, or have left wills without any provisions for the appointment of executors, and not to cases of delegated authority.

3. Counsel also contends that the real parties attempting to sustain the appointment of Mr. Brown are the heirs of Mrs. Merrifield, and that, she having died first, the personal property bequeathed to her is intestate, and therefore they have no interest in the estate. In support of this, counsel cites Allison v. Smith, 16 Mich. 405. In that case a college was the residuary legatee. The statute required such wills to be executed at least two months prior to the death of the testator. The question was whether the will was executed in accordance with the statute. It was held that this question properly arose upon the hearing for the probate of the will, and not upon the distribution of the property under it. No such question is here presented. All concede that this will was properly executed, and should be probated. The sole question is, Who is entitled to execute a valid will? The property rights under it will arise for determination during its execution, but cannot be litigated in this proceeding. In re Nugent's Estate, 77 Mich. 503.

A further reply to this contention is that Mr. Brown is entitled to defend his right of appointment; and, while the same attorneys who appear for the heirs of Mrs. Merrifield appear also for him, there is nothing to indicate that he is acting in collusion with them, or that he is not in a legitimate manner seeking to defend his own right. An executor, whether named in the will or by delegated power, has the right to defend in the courts his authority to act.

The judgment of the circuit court will be reversed, and the order of the probate court appointing Mr. Brown affirmed. Let it be so certified to the probate court.

The other Justices concurred.