author: Montgomery, C. J.

text:
    WALKER v. ARCHER.
    Principal and Surety — Appeal Bond — Summary Proceedings —Continuance—Discharge op Surety.
    The vendor in a land contract declared a forfeiture for default in payments, and obtained judgment of restitution before a commissioner. The vendee appealed to the circuit court, giving the statutory bond, conditioned, among other things, for the payment of the rental value of the premises withheld. In the circuit the trial of the cause was postponed several times by consent of plaintiff, and without the knowledge of the sureties on the bond, on the payment of various sums of money by defendant, which were applied on the contract. Held, that the acceptance of the payments amounted to a waiver of the right to proceed with the suit, at least pro tanto, and hence operated to discharge the sureties.
    Error to Wayne; Rohnert, J.
    Submitted October M, 1901.
    Decided November 4, 1901.

      Assumpsit by Bryant Walker, administrator de bonis non, with the will annexed, of the estate of Corydon L. Eord, deceased, against John Archer and Ferdinand C. Ortmann, on an appeal bond. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Walker & Spalding, for appellant. •

      Flowers & Moloney, for appellees.
   Montgomery, C. J.

This action is brought to recover of the defendants, who are, sureties upon an appeal bond, the amount of a judgment rendered in a summary proceeding to obtain possession of. lands. One George W. Wool had contracted with the plaintiff’s predecessor for the purchase of a certain parcel of land. The contract provided that, in case of default in payment, the vendor might declare the contract void, and re-enter upon the premises, and that, in case the contract should be so declared void, the second party, Wool, should thenceforth be termed a mere tenant at will of the first party, and liable to be proceeded against, etc., and that the vendor should have the right to recover damages by reason of the nonperformance of the contract. Wool went into possession of these premises under the contract, but on the 24th of September, 1896, plaintiff served a notice of forfeiture of the contract, accompanied by a notice to quit the premises, on Wool and his wife. On December 6, 1897, plaintiff commenced a suit to recover possession of the land before a circuit court commissioner. On December 15, 1897, judgment of restitution was given in favor of the plaintiff, and on the 20th of December Wool appealed to the circuit court, and filed the usual bond, upon which the two defendants are sureties. The evidence further shows that, from the time the said appeal was filed in the Wayne circuit court, the case was reached for trial at four different terms of court, and at each time postponed at the request of Wool, and with the consent of Walker, administrator, upon the payment to Walker of certain sums of money, namely: On July 12, 1898, $50; on July 18, 1898, $100; on November 28, 1898, $25; on April 21, 1899, $100. The circuit judge found, as matter of law, that, by his consent to delay the' trial of the cause, the plaintiff had released the bondsmen from all liability as sureties, and rendered judgment for the defendants.

It is contended by the plaintiff that the surety upon a bond submits himself to the acts of the principal and to the judgment; citing Dudley v. Conely, 125 Mich. 300 (84 N. W. 286). In that case it was held that a stipulation in. the ordinary conduct of the case, although it involved some delay in the proceedings, would not release the surety. But the case is unlike this in very important particulars. In the present case, the plaintiff had the right, on the failure of Wool to pay the amount due upon the contract, to declare a forfeiture, and proceed to recover possession of the property, or to press his remedy, and collect the contract price. See Goodspeed v. Dean, 12 Mich. 352; Hamilton v. Park & McKay Co., 112 Mich., at page 142 (70 N. W. 437). The plaintiff had, before bringing this proceeding, declared the contract forfeited, and was entitled, according to his contention, to proceed to obtain a recovery of the possession and the rental value of the property. The purpose of his suit could legitimately be for the latter object only. But payments were made from time to time. It is the contention of the plaintiff that these payments were made upon the contract. If so, the receipt of the payments amounted to a waiver of the right to proceed to recover possession, either in toto or pro tanto. If it be said that they were a waiver pro tanto only, and only operated to waive the right to insist upon his forfeiture previously declared until the termination of the time covered by the stipulation, yet it cannot be doubted that such waiver was, to that extent, binding upon the plaintiff, and that the payment by Wool was a sufficient consideration for it. As each succeeding payment was made, the plaintiff was in a position where he had elected to treat the contract as forfeited, and was entitled only to proceed against the land. New relations were established between the parties by each succeeding payment, and this furnished a consideration for the continuance. This case is unlike any of those cited by plaintiff’s counsel, in which mere delay, without any new consideration moving to the plaintiff, has been held insufficient. We think the case, on principle, is the same as it would have been had the defendants guaranteed the payment of rent, and the plaintiff disabled himself from taking legal proceedings to enforce the payment. A case involving this principle is Ducker v. Rapp, 67 N. Y. 464.

We think no error was committed by the trial judge. Judgment will be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FRIEDMAN v. HORNING.
    Title to Office — Member of Board of Supervisors — Salary —Power of County Treasurer.
    Where the title to office of a member of the board of supervisors was questioned, but the board recognized him as a de facto officer, and issued an order upon the county treasurer for such member’s salary, the treasurer, being a ministerial officer, was without authority to refuse payment on the ground that the member was not an officer de jure.

      Certiorari to Saginaw; Beach, J.
    Submitted October 29, 1901.
    Decided November 4, 1901.

      Mandamus by Kalma Friedman to compel Washburn Horning, county treasurer, to pay a certain order. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Henry H. Naegely, for relator.

      John F. O’Keefe (Humphrey & Grant, Chauncey H. Gage, Eugene Wilber, and W. II. Kendrick, of counsel), for respondent.
   Moore, J.

This hearing is brought on a writ of certiorari issued out of this court to review the action of Emmet L. Beach, a circuit judge of Saginaw county, in issuing a mandamus compelling the petitioner here, Washburn Horning, county treasurer of Saginaw county, to pay Kalma Friedman, the relator in the circuit court, the sum of $33.24 for services and mileage while acting as a member of the board of supervisors at the June session of said board. Mr. Friedman was duly appointed a member of the board of assessment and review of the city of Saginaw in 1899, and by virtue of that office was a member of the board of supervisors of .Saginaw county, and legally served as such prior to the last session of the board of supervisors. In June last a law was passed which, if valid, legislated Mr. Friedman out of office. Act No. 485, Local Acts 1901. He, however, served upon the board of supervisors of Saginaw county at this June session for a period of 11 days, claiming that the law which attempted to oust him from office was unconstitutional. The circuit court issued an injunction restraining the person who sought to take his place from interfering with him in his office. For his 11 days’ services 'and mileage the board of supervisors, on the 6th day of July, adopted a pay roll by formal resolution, and this included Friedman’s pay of $33.24; and a proper order was made by the board of supervisors, signed by the clerk of the board, and countersigned by the chairman, for the sum of $33.24, and was presented to Washburn Horning, the treasurer, for payment. The treasurer refused to pay the order on the ground that Friedman was not a legal supervisor, and the board of supervisors had no authority to give him compensation. Subsequently Mr. Friedman petitioned the circuit court for relief, and the court directed that a writ of mandamus issue against the county treasurer for the payment of the sum. This action is to review the judgment of the lower court in his decision.

Counsel for the respondent earnestly urge the court, in this proceeding, to pass upon the question of the title to the office in dispute, but we decline to do so. As the record disclosés the relator was a de facto officer, who rendered service upon the board of supervisors, for which service his claim for compensation was allowed by the board of supervisors, and an order was given him upon the county treasurer, we think it was the duty of that officer to pay the order. In reaching this conclusion we are not unmindful of the cases cited by counsel of Board of Education of Detroit v. Common Council of Detroit, 80 Mich. 548 (45 N. W. 585); Board of Supers of Cheboygan Co. v. Township of Mentor, 94 Mich. 386 (54 N. W. 169); and Van Akin v. Dunn, 117 Mich. 421 (75 N. W. 938). In none of those cases was the title to an office in any way involved. In all of them it appeared that the proposed action was illegal and wholly void. The court said that, as the writ of mandamus was a discretionary writ, it could not be invoked to accomplish an illegal purpose. In this case it cannot be said the action of the board of supervisors was illegal. The board recognized Mr. Friedman as a de facto officer, and allowed his account. It was not for the county treasurer, a ministerial officer, to say he was not a de jure officer, and the action of the board of supervisors was illegal. If he could do that in this case, he could say, when an order was presented to him which was issued to pay the bill of a constable, that the constable had not performed the service, and the action of the board of supervisors was illegal in allowing his claim, and therefore he would not pay it. It can easily be seen how unseemly such a result would be. Upon the refusal of the county treasurer to pay this order,the aid of the circuit judge was invoked. In the exercise of his discretion he issued the writ of mandamus, directing the county treasurer to pay the order. We cannot say that in doing so he acted improperly. His action is affirmed.

The other Justices concurred.


text:
    WATERS v. GILLIES.

    Mortgages — Consideration — Cancellation — Evidence — Review.
    Complainant traded real estate worth $5,000, incumbered by a mortgage of $4,000, with §485 unpaid interest and taxes, to defendant, for land worth §1,000. The deed given by complainant excepted the mortgage, interest, and taxes from the warranty clause, but contained no express assumption of incumbrances by defendant. Complainant also gave defendant a mortgage for $485 on the property received from him, which recited that it was for a part of the purchase price. Complainant contended that this mortgage was given to secure defendant for the back taxes and interest, which he was to pay in the first instance; that He neglected to do so, and that complainant, having herself paid them, was entitled to a discharge of the mortgage; while defendant claimed that the mortgage was given for the purpose stated therein, and represented the difference between the value of complainant’s equity and the value of the land deeded by defendant. On a consideration of all the evidence, held, that a preponderance was with the defendant.
    Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted October 8, 1901.
    Decided November 12, 1901.
    Bill by Clarence F. Waters and Lillie A. Waters against Alexander R. Gillies to compel the discharge of a mortgage. From a decree for complainants, defendant appeals.
    Reversed.

      Taggart, Denison & Wilson, for complainants.

      G. A. Wolf, for defendant.

       Rehearing denied May 7, 1902.

   Moore, J.

Prior to February, 1898, Mrs. Waters,-one of the complainants, was the owner of a lot and two houses in the city of Grand Rapids, upon which there was due and unpaid a mortgage for the principal sum of $4,000, and $485 of interest and back taxes. The defendant was the owner of two lots, which were unincumbered. Mrs. Waters, through her husband, the other complainant, who acted as her agent, placed this property with Mr. Griffiths, a real-estate agent, for sale or exchange. He had some talk with defendant about trading his two lots for the interest Mrs. Waters had in her property. Mr. Gillies, Mr. Griffiths, and Mr. Waters looked at the property of Mrs. Waters; and, after some negotiations, about which the parties differ, on the 11th of February, 1898, Mrs. "Waters made a warranty deed of her lot and two houses to Mr. Gillies, which deed, among other things, states:

“First party shall warrant and defend the same against all lawful claims whatsoever, except a certain mortgage of $4,000 and accrued interest thereon, recorded in L. 156, on p. 424, and also the taxes for the years 1895, 1896, and 1897.”

There is no assumption of or agreement to pay any part of the incumbrance by second party in this deed. This deed was not recorded.

Upon the same date Mr. Gillies made to Mrs. Waters a warranty deed of the two lots, and she gave him a note reading as follows:

“$485.00. Grand Rapids, Mich., Feb. 11th,'1898.
“Three years after date I promise to pay to the order of A. R. Gillies four hundred and eighty-five dollars at the Fourth National Bank, value received, interest at seven per cent, per annum, payable semi-annually until paid. Lillie A. Waters.
“Secured by real-estate mortgage.”
—And a mortgage upon the two lots to secure the payment of this note; the mortgage stating, “ This mortgage is given as part of the purchase price of the above premises.”

On the following day Mr. and Mrs. Waters gave to Mr. Gillies a quitclaim deed of the lot and two houses; Mr. Gillies assigning, as a reason why he wanted it, that he wanted the signature of Mr. Waters to the conveyance giving him title. This deed was put upon record. Mr. Griffiths was paid a commission of $50 by Mrs. Waters. He received no compensation from the defendant. On the 11th of August, 1899, Mrs. Waters conveyed to Mr. Waters an undivided one-half interest to the property Mr. Gillies had deeded to her, “intending that the parties be tenants by the entirety.”

After Mrs. Waters made the deed to Mr. Gillies, he put the property under the control of Mr. Griffiths, who caused some repairs to be made to the premises, and collected the rent for Mr. Gillies, but paid nothing upon the mortgage or upon the back taxes. The $4,000 mortgage was owned by a bank, which commenced foreclosure proceedings June 32, 1898. Mr. Waters owned the mortgaged premises before his wife did, and signed the note and mortgage held by the bank. The bank, when it .commenced foreclosure proceedings, notified Mr. Waters it would ask for a personal decree against him, and took such a decree November 8, 1898, in which a sale was authorized after June 9, 1899. The property was advertised to be sold August 12, 1899. On the 10th of August Mr. Waters caused $505 to be paid to the bank, the payment of which, he claims, entitled himself and Mrs. Waters to a discharge of the mortgage Mrs. Waters had given to Mr. Gillies; and, upon the latter’s refusal to discharge the mortgage, the complainants, filed this bill to obtain a discharge. Mr. Gillies answered to the bill, and filed a cross-bill asking for a foreclosure of the mortgage. The case was tried in open court. A decree was entered dismissing the cross-bill and canceling the' mortgage. The case is appealed to this court by the defendant.

The testimony is very contradictory. The claim of the solicitors for complainants is:

“ The decree in this case is right for two reasons:
“1. The consideration for the $485 mortgage was that Gillies was to take care of the back taxes and interest against the Crescent-avenue property to that amount, which Waters was primarily and personally bound to pay. Gillies failed to take care of the $485. On the other hand, Waters was obliged to, and did, pay the amount, with interest. Therefore the consideration for the mortgage has utterly failed. It would be inequitable to enforce it, and it should be discharged.
“2. Mr. Waters, having been obliged to pay the $485 which Gillies should have paid, is entitled, in equity, to set this off against the note and mortgage, and the mortgage should be discharged.”

On the part of the defendant it is claimed that, while he took the property from Mrs. Waters subject to the mortgage and back taxes, he did not assume them, and was under no obligation to pay them; that he did not agree to pay the $485, and such an agreement was not the consideration for the mortgage. He asserts that in the trade the parties valued Mrs. Waters’ real estate at $5,000, upon which there were incumbrances, including the taxes, amounting to $4,485, leaving an equity in the property of $515; that his two lots were valued at $1,000, and after deducting from that amount the equity in the real estate of Mrs. Waters, $515, it left $485; that for his two lots she traded him her equity in her real estate, of $515, and gave him a mortgage back on his two lots, of $485, making the $1,000 at which his lots were valued in the trade. He insists the mortgage was given just as stated in the mortgage, as part of the purchase price of the premises.

Mrs. Waters and Mr. Gillies did not see each other or have any talk with each other in relation to the trade. The claim of complainants, so far as the record goes, is based upon the testimony of Mr. and Mrs. Waters. The former testified: “Mr. Griffiths came into the store the next morningand said that Mr. Gillies would not trade the property in that way unless the back taxes and interest were paid up. I told Mr. Griffiths that I could not pay him; that I did not have the money to take out of my business, and I could not pay the taxes and interest at that time, but that if he would pay them I would give him a mortgage back on these lots to secure him for the amount of the taxes and interest, provided Mrs. Waters was willing;” .and that this was agreed to. He testified he had examined the record before giving his testimony, and found the quitclaim deed upon record, but the warranty deed was not recorded; that he read the warranty deed through before it was signed, and knew the difference between simply conveying subject to an incumbrance and assuming the incumbrance; and that there was a statement in the warranty deed that Mr. Gillies was to pay up the taxes for 1895, 1896, and 1897, and the interest on the mortgage.

Mrs. Waters testified as to what occurred when the papers were brought to the house for her signature, in response to questions put to her, as follows:

“Q. What was the talk? What was said at that time between the three of you there about the back taxes and the interest on the hill property ?
“Mr. Wolf: That is objected to as before, — as being Incompetent, irrelevant, and immaterial.
“A. Mr. Griffiths explained to me as it was in the deed, —that they were to pay the 1895, 1896, and 1897 taxes and interest, and we were to give a mortgage on the south property for a guard for them.
“Q. As a guard for them?
“A. Yes, sir; because Mr. Waters did not feel able to spare the money, and rather than do it he would prefer to give a mortgage on the lots.
“Q. Do you remember how much, or about how much, those items figured up ?
“A. About $485.
“Q. Who figured them up ?
“A. I think they both figured them up together.
“Q. Mr. Waters and Mr. Griffiths?
“A. Yes, sir.
“Q. Can you say whether anything on that subject was put in the deed ?
“A. It was; it was in the deed.
“Q. State as near as you can what was in the deed,— what the deed said about that.
“A. I don’t know as I could do that.
“Q. Not the exact words, but the substance of it.
“A. I remember very emphatically, more than anything else but the interest, of seeing these figures on the deed at the last end of the deed.
“Q. ’95, ’96, and’97?
“A. Yes, sir; it was 1898 then, but the 1898 taxes were not due. Mr. Griffiths spoke of it.
“Q. But the exact language that was used there, you can’t give?
“A. No, sir.’’

When the warranty deed was produced, it was evident the parties were mistaken as to what it contained. Doubtless they were honestly mistaken, but it is a test of their recollection of what occurred. Mr. Griffiths and Mr. Gillies both testified that the mortgage was not given to indemnify Gillies for paying the back taxes and interest, but was given to make the equities in the two properties alike. Mr. Griffiths had been in the real-estate business some years, and was in the habit of drawing deeds and mortgages. As before stated, Mr. Waters knew the difference between accepting a deed subject to incumbrances and accepting one in which the grantee assumed the incumbrances. In view of these facts, it is difficult to account for the statement contained in the deed, if Mr. Gillies agreed to pay the interest and back taxes. If Mr. Gillies agreed to pay the $485 interest and back taxes, one would suppose the agreement would be put in the deed. Another significant fact, though not controlling, is that, some months after the mortgage was given, Mr. Griffiths, acting for Mr. Gillies, informed Mr. Waters that Mr. Gillies desired and expected to sell the mortgage, and, to enable him to do so, desired to borrow an abstract of the property which Mr. Waters had. Mr. Waters let him have the abstract. Other facts appear in the record which, though not important in themselves, taken in connection with the other testimony, lead us to conclude, from a perusal of the entire record, that complainants have failed to establish their case by a preponderance of evidence, and that the preponderance of the evidence is the other way.

The decree of the court below is reversed, and one will be entered here in accordance with the terms of the mortgage.

Montgomery, 0. J., Hooker and Long, JJ., concurred. Grant, J., did not sit.


text:
    AZTEC COPPER CO. v. AUDITOR GENERAL.
    1. Equity Practice — Motion to Dismiss Petition — Appeal.
    A motion to dismiss a petition to vacate a tax decree cannot be regarded as a demurrer, and an order denying it is not reviewable on appeal from a decree granting the petition.
    2. Same — Ex Parte Affidavits.

      Ex pa/rie affidavits filed with the court at the time of settling a decree cannot be considered on appeal.
    3. Tax Sales — Validity—Premature Decree.
    A tax sale is void where five days of court did not intervene between the day fixed for hearing the auditor general’s petition and the date of the decree, thereby depriving landowners of the right given them by 1 Comp. Laws, § 3889, to apply for
    leave to file objections to the tax.

    4. Same — Setting Aside Sale — Lands Held by State Under Former Bid.
    A tax sale will be set aside on petition where the land was held by the State under a former bid at the time of the filing of the auditor general’s petition, and, under the statute, should not have been included therein. Gonneetieut Mui. Eife Ins. Co. v. Wood, 116 Mich. 444, followed.
    5. Same — Laches.
    A petition to set aside a tax sale for jurisdictional defects will not be dismissed on the ground of laches, where it is filed within 10' months after petitioner learned of the sale, and within a few days after he ascertained the names and addresses of the persons interested therein.
    6. Same — Reimbursement of Purchaser.
    A tax sale should not be set aside for defects in the proceedings without requiring the petitioner to reimburse the purchaser.
    Appeals from Ontonagon; Haire, J.
    Submitted October 8, 1901.
    Decided November 12, 1901.
    Petitions by the Aztec Copper Company against Roscoe D. Dix, auditor general, Albert F. Cook, and others, to set aside certain tax sales. From decrees for petitioner, respondents appeal.
    Modified and affirmed.

      M. J. Sherwood, for petitioner.

      Gordon & Kimmis (John A. McKay, of counsel), for respondents.

       See, on this subject, Allen v. Cowley, ante, 530.

   Moore, J.

There are six of these cases, argued as one. They are brought for the purpose of setting aside six decrees in relation to unpaid taxes for six different years. All of the respondents, except the auditor general, are persons who have bought the title of the State to the lands in dispute, and have taken deeds therefor. The record discloses in the respective proceedings to obtain a decree the following dates of hearing and decree:

Date of Hearing. Date of Decree.

1889. February 2, 1892. February 5, 1892.

1890. October 18, 1893. February 6, 1893.

1891. October 23, 1893. 1892. October 16, 1894 October 23, 1893. November 12, 1894

1893. October 15, 1895. November 4, 1895.

1894 October 27, 1896. October 31, 1896.

The matter was brought to the attention of the court by separate verified petitions in each of the tax decrees, setting forth the grounds upon which petitioner alleges that the decree of the court was rendered without jurisdiction, and praying that the tax decrees should be vacated, and that the deeds issued thereunder should be decreed void. Upon presentation of these petitions to the circuit judge, February 7, 1900, orders were made that respondents show cause why the prayer of the petitions should not be granted. Service of the petitions and orders was made in accordance with the said order on each of these respondents, and upon the hearing of the petitions, which occurred on June 5, 1900, the respondents appeared specially by W. D.’Gordon, their solicitor, and moved to dismiss the petitions for several reasons, the principal one of which was want of jurisdiction to hear them. After argument the circuit court ordered the petitioner to proceed with its petitions, and to submit its proofs in support thereof, taking the motions to dismiss petitions under advisement. Proofs were taken against objection of respondents. On the 20th of July, 1900, the circuit judge handed down an opinion dismissing the motions to dismiss, and granting the prayer of the petitions, but ordering petitioners to amend the verification of petitions nunc pro tunc. This petitioner did on August 15, 1900. September 12, 1900, a decree was settled ; a separate decree being made in each one of the proceedings of the auditor general, decreeing that the tax decree in each proceeding was rendered without jurisdiction in the court to make the same. At the time the decree was signed at chambers, counsel for petitioner was not present; but respondents were represented by Mr. Gordon, who protested against the making of the decree, and moved the circuit judge at chambers to make no final decree, and to make an order permitting the respondents to then appear generally and to answer the petitions, or to appeal to the Supreme Court, and in support of that introduced the affidavits of John S. Porter and William D. Gordon, with certain exhibits. Neither motion nor exhibits were served on petitioner’s solicitor, and have never been served on him. From the decree entered by the circuit judge the case is brought here by appeal.

Upon the hearing here the respondents seek to have the court review:

First. The order of the court dismissing their motion to dismiss the petitions of the petitioner.

Second. The refusal of the court to grant the ex parte motions of respondents made September 12th, at the settling of the decree, to be permitted to appear generally and answer the petitions, and to treat the motions to dismiss as demurrers.

Third. The decree granting the prayer of the petitions.

The motion to dismiss was in no sense a demurrer; and we do not think in this proceeding we can consider the ex parte affidavits which were filed with the judge at the time of the settling of the decree.

The important defects relied upon to invalidate the decrees are: First, that they were, respectively, prematurely entered; and, second, that the lands had been previously sold, and were held as State tax lands for the taxes of the previous year or years.

Five days did not intervene between the date fixed for the hearing and the date of the decree in any of the cases except the one for the tax of 1893. It is insisted the decrees were invalid for that reason; counsel citing Peninsular Sav. Bank v. Ward, 118 Mich. 87 (76 N. W. 161); McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928). These cases sustain the claim of counsel.

As to the decree for the tax of 1893, it is said that, though five days intervened between the date fixed for the hearing and the granting of the decree, as these lands had been previously sold, and were then held as State tax lands, the auditor general had no right to include them in his petition, which was the basis of the decree. This question was fully discussed in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), which case sustains the contention of petitioner.

It is the claim of respondents that petitioner is guilty of such laches that the court ought not to vacate the decrees; citing Cook v. Hall, 123 Mich. 378 (82 N. W. 59). In that case petitioner rested two years after he knew the State had sold its interest to the respondents, and rights of third persons had intervened. The circuit judge filed a written opinion in the case at bar, and discussed this feature of the case in the following language:

“This leaves only one question of any importance to be decided, viz.: Can the petitioner be heard at this time, the ■ taxes not having been paid, and the property not being exempt from taxation ? Respondents rely upon section 70 of the general tax law (1 Comp. Laws, § 3893), which reads as follows:
“ ‘ That no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation. In such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same aside, and the court may so order upon such terms as may be just.’
“And they contend that the court has no jurisdiction to hear the petitions, because more than one year has elapsed since the several decrees were made. It is, however, admitted on both sides that, if the application to set aside a decree is made within a reasonable time, it will set aside the decree and sale in case of an entire lack of jurisdiction. See Cook v. Hall, 128 Mich. 378 (82 N. W. 59).
“It has been held that a- decree may be set aside by petition after one year, where the court had no jurisdiction to make it, provided the petitioner shows strong equities in his favor, and was not guilty of laches. See Spaulding v. O'Connor, 119 Mich. 45 (77 N. W. 323); also Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364). This rule is under the general equity practice, independent of the statute above quoted, and hence the questions naturally arise: What is a reasonable time? And was the petitioner guilty of laches in these cases? What has our court held on the question of reasonable time ? Petitioner’s solicitor cites all of the important cases where petitions to set aside decrees have been granted, viz.: In the case of Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364), it was held that a decree by default may be opened within a reasonable time on showing an adequate excuse, and this must generally be within the sound discretion of the court; and a party is not deprived of this remedy by the fact that other parties have purchased in reliance upon the decree. In this case the decree was rendered in 1892 for the taxes of 1889, and the petition to vacate the decree was not filed until 1895. In the case of Cook v. French, 96 Mich. 529 (56 N. W. 101), petition to vacate a decree was filed some five years after decree; the ground being, as in the case at bar, want of jurisdiction. The case of Jenkinson v. Auditor General, 104 Mich. 34 (62 N. W. 163), is practically the same. And in the case of McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928), the land was sold in 1895 for the taxes of 1893. Notice of the sale was given to the owners in February, 1896, when they attempted to file their deed. The land was purchased in 1897 by McGinley. Tax deed was issued to him, and petition was filed to vacate the sale and deed to McGinley in March, and was heard in June, 1898. In the case of Thomas v. Auditor General, 120 Mich. 535 (79 N. W. 812), tried by this court below, the sale was made in 1894 for the taxes of 1892, and petition to vacate decree was not brought until 1898. The petition was granted by the lower court, and the decree set aside, although several years had elapsed after the making of the decree.
‘ ‘ From above and other cases it also seems clear that parties cannot be guilty of laches until notice of the sale and purchase has become known to the parties, and from that time only can laches be imputed. In the case at bar it is undisputed that notice of the sale of its lands was brought to the attention of the petitioner’s agent in the spring of 1899; that afterwards there was some correspondence with several parties carried on by petitioner’s solicitors, to ascertain who were the parties interested in these tax titles; that, within two or three days after ascertaining the names of the parties defendant, petitioner filed its petition. This state of facts, in the opinion of the court, shows a reasonable diligence, and does away with the charge of laches in bringing suit. As compared with the cases of Thomas v. Auditor General and Cook v. French, and others cited above, it shows extraordinary diligence. It appears, then, that, applying the decisions above cited to the facts in these cases, the application to set aside the decrees was made in reasonable time, and petitioner has not been guilty of appreciable laches. ”

We agree with the court below that petitioner has not been guilty of such laches as to preclude the court from setting aside the decrees.

The petitioner did not offer in its petition, nor during the progress of the trial in the court below, to reimburse the respondents for the amount paid by them to the State at the time of their pui’chase, and the decrees rendered by the court below did not require this to be done. In Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich., at page 454 (74 N. W. 659), it is said, in a like case to this, “If, as in the present case, the taxpayer petitions the court in chancery in the auditor general’s proceedings, the court will compel him to do equity.” See, also, Jenkinson v. Auditor General, 104 Mich. 34 (62 N. W. 163); McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928). In his supplemental brief in this court, counsel offers to pay the respondents the amount paid by them at the time of their purchase, with interest, if the court deem it equitable and right. We think the petitioner ought to be required to do this before the decrees are vacated, and, when it is done, that the decrees should be vacated. In view of this peculiar situation, we decline to give costs to either party.

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


author: Grant, J.

text:
    CONTINENTAL VARNISH & PAINT CO. v. SECRETARY OF STATE.
    1. Corporations— Increase op Capital Stock — Certificate — Requisites — Record.
    Section 2, subd. 4, of the act relating to manufacturing companies (2 Comp. Laws, § 7037 et seq.), provides that, when the capital stock of any such corporation is increased or diminished, the president and a majority of the directors shall make a certificate thereof for record in the office of the secretary of state. Section 17 declares that the,articles of association may be amended, by a vote of two-thirds' of the capital stock, in any manner not inconsistent with the provisions of the act, but that such amendment shall not become operative until a copy of the resolution, signed by the president and secretary, shall have been duly recorded. Section 38 authorizes the corporation, by a vote of three-fourths of its stock, to amend its articles so as to issue preferred and common stock, “in the same manner and with the same effect as is now provided by section 17.” Held, that sections 17 and 38 do not nullify the provision of section 2 as to increasing the capital stock, and that, where a corporation undertakes to increase its capitalization by providing for the issuance of preferred stock, the certificate of amendment must be signed by the president and a majority of the directors in order to be entitled to record.
    2. Same — Preferred Stock — Authorization.
    Under the provision of section 38 that the preferred stock of any such company shall at no time exceed two-thirds of the actual capital paid in, no preferred stock can be authorized by amendment of the articles beyond two-thirds of the amount of capital actually paid in at the time of such amendment. -
    3. Same — Unsubscribed Stock.
    While the act does not in terms require the entire capital stock of the corporation to be subscribed as a condition precedent to the exercise of corporate functions, it clearly contemplates such subscription, and where the articles of association of any such corporation, or certificates of amendment thereto purporting to increase its capital stock, fail to show that the entire authorized capital stock, preferred as well as common, has been subscribed, the secretary of state is justified in refusing to record them.

      Mandamus by the Continental Varnish & Paint Company to compel Fred M. Warner, secretary of state, to record a certificate of amendment to relator’s articles of association.
    Submitted October 8, 1901.
    Writ denied November 12, 1901.
    The relator was -organized July 3, 1900, under chapter 188, 2 Comp. Laws (being Act No. 232, Pub. Acts 1885), with a capital stock of $10,000, divided into 1,000 shares, of $10 each. January 4,1901, at a duly-called meeting of the stockholders, a resolution was adopted to increase the capital stock to $100,000, and the number of shares to 10,-000, and a certificate thereof was duly filed in the office' of the respondent. February 4, 1901, at another duly-called meeting of the stockholders, it was resolved to increase the stock to $150,000, of which $50,000 was to be preferred, and represented by 5,000 shares, and $100,000 common, represented by 10,000 shares. The resolution further provided:
    “Said preference stock, as issued by said company, shall at no time exceed two-thirds of the actual capital paid in, and shall be subject to redemption at par at a time certain, to be fixed by the by-laws of said corporation, and to be expressed in the certificates therefor. ”
    A certificate, signed by the president and secretary of relator, containing the resolution of February 4th, was presented to the respondent for record in his office. He declined to receive and record it, claiming that neither the certificate nor the resolution was in compliance with the law.

      Warner & Godd, for relator.

      Horace M. Oren, Attorney General, for respondent; submitting the brief of Samuel A. Kennedy, corporation clerk in respondent’s office.
   Grant, J.

(after stating the facts). The relator sought to accomplish two objects by the resolution of February 4th, viz., the increase of the capital stock, and the division of the stock into “ common” and “ preferred.” Subdivision 4 of section 2 of the act (2 Comp. Laws, § 7038) provides that, when the capital stock of the corporation is increased or diminished, the president and a majority of the directors shall make a certificate thereof. The certificate in this case was signed by the president and secretary, and not by any of the directors. Section 17 (2 Comp. Laws, § 7053) provides that the articles of association may be amended, by a vote of two-thirds of the capital stock, in a-manner not inconsistent with the provisions of this act, but such amendment shall not become operative until a copy of the resolution, signed by the president and secretary, shall have been recorded. Section 38 (2 Comp. Laws, § 7073) provides for the issue of “common” and “preferred” stock. The closing paragraph of that section provides that, by a vote of three-fourths of its stock, such corporation may amend its articles so as to issue preferred and common stock, “ in the same manner and with the same effect as is now provided by section 17 of this act, relating to amending articles of association.” There is nothing in section 38 authorizing an increase of the capital stock. If the corporation desires to increase its capital stock, and at the same time to provide for the two kinds, it must proceed under subdivision 4 of section 2, and present a certificate to be filed as required by that section. Sections 17 and 38 do not nullify the provisions of section 2 as to increasing the capital stock. They refer to other amendments than those increasing or diminishing the stock. The certificate, therefore, was not- in compliance with the statute.

The statute (section 38; 2 Comp. Laws, § 7073) provides that the preferred stock shall at no time exceed two-thirds of the actual capital paid in. It is conceded that the entire stock has not been paid in, and that the issue of, $50,000 of preferred stock would be in violation of the statute. The relator, however, contends that it is entitled to have the amendment recorded and filed, and that the restriction then limits the directors in issuing the preferred stock to an amount not exceeding two-thirds of the capital stock as it may from time to time be paid in. We do not think this the proper construction. The resolution increasing the capital stock to $150,000, and providing for preference shares, does not state how much of the capital has been paid in. The original articles, as filed, are required to show the amount of capital actually paid in. The annual report of the corporation requires a similar statement. But after one report is filed there is no public record of the payment of any more capital stock until the next annual report. Dishonest directors, if the contention of the relator be sustained, might during this time issue the whole of the preferred stock upon their assurance to its purchasers that the whole capital stock was paid. The entire preferred capital stock might be sold at the same time to different parties. In such case it would be impossible to tell what stock was issued first, and what, therefore, was in violation of law. We think it was the purpose of the law to render impossible such a condition of affairs, and that the law means that no preferred stock can be authorized beyond two-thirds of the amount of capital actually paid in at the time of authorizing the issue. This construction prevents any opportunity on the part of dishonest directors to commit fraud, and imposes no hardship or inconvenience. The stockholders are presumed to know the condition of the company, and how much money they want to borrow by the issue of preferred stock in order to continue business. Should they desire to raise more money in the same manner, another meeting can be called.

The other remaining question is, Must the. entire capital stock of a corporation, under this act, be subscribed, or can three or more corporators subscribe for one-tenth of the capital stock, pay that in, and then say that they are a duly-organized corporation? It does not need much argument to demonstrate the fallacy of this position. The capital stock in many cases is the chief asset of the corporation. The theory is that those dealing with it have the right to assume that this stock is all in the hands of bona fide subscribers, liable to assessment to pay the debts of the corporation. There is no statute in this State prohibiting a corporation from incurring debts or borrowing money until all its stock is fully paid. All the law now requires is that the stock be subscribed, and that a certain percentage thereof be paid in, and then the corporation can proceed to business and incur debts without calling upon the stockholders for further assessments. It is, in my judgment, a very pernicious policy, but that is a matter for the legislature, and not for the courts. There is no such thing as capital stock until it is issued and owned by the subscribers or purchasers: Relator’s counsel insist that a corporation with $100,000 capital requires only $10,000 of it to be actually subscribed, and the other $90,000 may remain in the treasury, as “treasury stock.” This $90,000 of treasury stock is obviously of no value as an asset. The directors cannot be compelled to issue it, and nobody can be compelled to buy it. Such a corporation would virtually have a $10,000 capital, and that all paid in, with no further liability on the part of those who have taken the $10,000, because their stock is fully paid up.

While the statute contains no express requirement that all the stock must be subscribed, we think it clearly contemplates this, in order to constitute it a corporation de jure. We are not dealing with those cases where the courts have held corporations to be corporations de facto, though not de jure, where they have not complied with the law. In such cases stockholders are properly held estopped from setting up such defenses. We are dealing with a case where the secretary of state declines to recognize such a corporation as a de jure one until it has complied with all the requirements of the law. We think this conclusion is fully sustained by the reasoning in the case of International Fair & Exposition Ass'n v. Walker, 88 Mich. 62 (49 N. W. 1086),' in which it was said, “ The capital stock authorized is the lifeblood of the corporation.” See, also, page 79 of that opinion. Undoubtedly, if the relator had filed its articles of association, the corporation would have been a de facto one. But the respondent very properly replied to relator’s application to file these amendments, “ I insist that you become a de jure corporation, as well as a defacto one.”

Counsel quote a sentence from American Mirror & Glass-Beveling Co. v. Bulkley, 107 Mich. 447 (65 N. W. 291), in support of their contention. That case was written by the writer of this opinion. The sentence quoted is as follows:

“The act [the same one as that now under consideration] does not provide that the entire capital stock shall be subscribed as a condition precedent to its organization and the right to carry on business.”

The defendant in that case had paid in full for her stock. The attempt was made to hold her for the stock which had not been subscribed. The logical conclusion from that case is that, had she been a party to the fraud in organizing the corporation and in carrying it on, without the issuance of the entire capital stock, she would have been liable. Standing alone, the sentence quoted might naturally bear the construction placed upon it by counsel; but, read in connection with the facts of the case, it cannot be so construed. It was a case of a de facto, not a de jure, corporation.

For these reasons, the respondent was right in refusing to file the certificate of the amendment, and the writ is denied.

The other Justices concurred.


author: Long, J.

text:
    BAILEY v. VAN BUREN CIRCUIT JUDGE.
    Mandamus —Township Boards — Approval op Bonds — Disore. tionart Powers — Issues.
    Where the return of a township board to an application for mandamus to compel the approval of a druggist’s bond sets up that it rejected the bond in good faith, after a full and fair investigation, because of the insufficiency of the sureties, relator is not entitled to have an issue framed as to the good faith of the board, for submission to a jury.

      Mandamus by Phy C. Bailey to compel John R. Carr, circuit judge of Van Burén county, to permit the framing of an issue of fact in a mandamus proceeding.
    Submitted October 8, 1901.
    Writ denied November 12, 1901.

      Hammond & Hammond and Thomas J. Cavanaugh, •for relator.

      Lincoln H. Titus, for respondent.
   Long, J.

A petition was presented by relator to the circuit court of Van Burén county for a mandamus to compel the township board of Covert township, in that county, to approve a certain druggist bond; the relator claiming that the board did not act in good faith in refusing to approve such bond. An order to show 'cause was issued, and the board filed its answer to the petition. The answer sets up, substantially, that the board, after due consideration, decided that the sureties on the bond were not financially responsible; that the board arrived at this conclusion after a full and fair investigation of their property and its value, and the amount of indebtedness and liabilities against them; and that the true reason for the refusal to approve said bond was that the board did not believe that the sureties were pecuniarily responsible for the amount of said bond. The board denies any intention to disregard the rights of relator, and is now willing to accept a bond from the relator, provided the same be signed by sureties, who are financially responsible. On the coming in of this answer the relator asked the court that an issue might be framed as follows:

“Did the township board, at the time it rejected the drug bond of the relator, act in good faith in determining the sufficiency of the sureties on said bond, or did it act arbitrarily ?”

The court denied the application to frame an issue. This court is now asked to issue a mandamus to compel the circuit court to set aside the order made and allow the proposed issue of fact.

The return made by the township board shows that that board investigated the financial responsibility of the sureties on the bond; ascertained the value of their property, the incumbrances against it, their liability on other similar bonds, and their exemptions; and from such investigation the board became satisfied that these sureties were not worth the sum named in the bond. There is no charge made in the petition that the board acted from malice or fraud. By the provisions of section 5381, 3 Comp. Laws, a druggist, before he can do business, must file a bond with the county treasurer, etc., the sufficiency of which shall be determined by the township board of the township in which he proposes to carry on such business. Under the provisions of this statute, the township board is the sole and final judge of the sufficiency of the sureties, provided it acts fairly and in good faith.

It is elementary that the writ of mandamus will not issue to control the exercise of judgment or discretion which the law vests in an officer. To do so would simply result in usurpation by the courts of the very power and discretion which the law confers upon others. All acts or duties depending upon a decision of a question of law, or the ascertaining of matters of fact, by the officer or tribunal charged with the duty, are considered to be judicial. Merrill, Mand. § 31; Mooney v. Edwards, 51 N. J. Law, 479. (17 Atl. 973). It was held in People v. Allegan Circuit Judge, 29 Mich. 487, that where an inferior court has •acted judicially in the determination of a question of fact, or a question of law properly involved in the case in such •shape as to give the power judicially thus to determine it, however erroneous the decision, it cannot be reviewed 'by mandamus. The return shows that the board acted within its discretionary power and in good faith. That is •all that is required.

It was held in McHenry v. Township Board of Chippewa, 65 Mich. 9 (31 N. W. 602), that, where there is nothing disclosed by the return of a township board showing that its discretionary power ha,s not been reasonably •and in good faith exercised in passing upon the sufficiency of sureties on a liquor bond, mandamus to compel its approval will be denied. See, also, Post v. Township Board of Sparta, 63 Mich. 323 (29 N. W. 721); Palmer v. President, etc., of Village of Hartford, 73 Mich. 99 (40 N. W. 850); Parker v. Board of Trustees of Portland, 54 Mich. 308 (20 N. W. 55); Wolfson v. Township Board of Rubicon, 63 Mich. 49 (29 N. W. 486); Schmitt v. Common Council of Village of Clinton, 111 Mich. 99 (69 N. W. 153). That this is an exercise of judgment and discretion, see, also, Pawlowski v. Jenks, 115 Mich. 275 (73 N. W. 238); Amperse v. Winslow, 75 Mich. 242 (42 N. W. 823); Wolcott v. Judge of Superior Court, 112 Mich. 311 (70 N. W. 831).

We think the circuit court very properly refused to permit the relator to framé and submit such issue.

The mandamus must be denied.

The other Justices concurred.


text:
    PIRGANDI v. FAY.
    1. Exchange of Lands — Rescission—Defective Conveyance.
    Where, at the time of an exchange of land, the deed to complainant was not acknowledged by the grantor’s wife, and had only one witness, but such defects were subsequently remedied, and the deed redelivered, complainant had no-ground for complaint.
    2. Same —Incumbrances —Warranty Deed — After-Acquired-Title.
    Where complainant claimed that land conveyed to him under an agreement to exchange was incumbered by a tax title, but it appeared that defendants grantor, after conveying to defendant by warranty deed, had obtained a quitclaim deed from the holder of the tax title, complainant was not entitled-to rescind the agreement.
    Appeal from Wayne; Carpenter, J.
    Submitted October 9, 1901.
    Decided November 12, 1901.
    Bill by Frank Pirgandi and Mary Pirgandi against William E. Fay and Anna F. Fay to set aside a deed. From a decree dismissing the bill, complainants appeal..
    Affirmed.

      Q-eorge H. Prentis, for complainants.

      Samuel W. Burroughs, for defendants.
   Long, J.

In November, 1893, complainants were the-owners of a house and lot in the city of Detroit, incumbered by a mortgage of $300. Defendants were the owners of 40 acres of land in Sumpter township, Wayne-county, incumbered by a mortgage of $241.6?. The parties entered into an agreement to exchange properties. The complainants were to deed defendants their house- and lot in Detroit, subject to the mortgage above mentioned, which the defendants were to pay, and subsequently did pay. The defendants were to deed complainants the west half of the 40 acres of land, subject to the incumbrance above mentioned, and which complainants were to pay. The deeds were passed, and defendants paid the mortgage on the house and lot. This bill is filed by complainants to set aside the deed made by them to defendants. It is the claim of complainants that the exchange of properties so made was brought about by fraudulent representations of the defendants; that the deed from defendants to them was never properly executed; that complainants never claimed any rights under it; and that the property so pretended to be conveyed to complainants was incumbered by a tax deed standing in the name of a third party. The proofs were taken in open court, and a decree made dismissing complainants’ bill, from which decree they have appealed.

Counsel for complainants states in his brief the issues between the parties. He says that “the question for détermination in this case is whether or not the complainants intended to deed to defendants their home in Detroit. If both of the complainants so intended, then this bill cannot be sustained. If, however, both of the complainants did not act understandingly, and did not intend to deed their home, the bill should be sustained.”

It appears that the complainants were joint owners of the premises conveyed to defendants, and it is true that neither could convey without the consent of the other, during their joint lives. But we are satisfied that the ' court below was not in error in dismissing. the bill. The deed was signed by both complainants, and delivered to defendants, and there is no satisfactory evidence that Mrs. Pirgandi did not understand that she was signing an instrument of conveyance of the premises in exchange for the land of defendants. There is no force in the contention that the deed from defendants was not properly executed. At the time of the exchange, by some oversight the deed was not acknowledged by Mrs. Fay, one of the defendants, and had but one witness. This omission was subsequently remedied, and tbe deed redelivered to the complainants. The court below, in passing upon the question of the incumbrance by the tax title, found that the defendants’ grantor obtained from the tax-title owner a quitclaim deed running to himself; that he had theretofore Conveyed the premises to the defendants by deed of warranty; and that consequently the title was perfected in defendants.

Upon the whole record, we are satisfied that the court very properly entered a decree dismissing complainants’ bill. That decree must be affirmed, with costs to defendants.

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


text:
    PADGETT v. JACOBS.
    1. Evidence — Conversations—Separate Versions.
    Where plaintiff testifies to a conversation between himself and defendant before suit brought, in relation to a settlement of the case, defendant may properly give his version of the same conversation.
    2. Trial — Instructions—Preponderance oe Evidence.
    An instruction that “by preponderance of the evidence, which the plaintiff must have,” is meant “that the testimony, when put in as to the claims of the respective parties, the evidence produced by the plaintiff must outweigh that of the defendant,” if erroneous as not distinguishing between “evidence” and “testimony,” is cured by the subsequent statement that the verdict is to be found “in the manner directed, — from a preponderance of the*evidence.”
    Error to Clinton; Stone, J.
    Submitted October 10, 1901.
    Decided November 12, 1901.
    Replevin by John Padgett against John Jacobs. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Spaulding, Norton & Looting, for appellant.

      Edwin H. Lyon, for appellee.'
   Long, J.

This is an action of replevin brought in justice’s court, and appealed to the circuit, where it was tried before a jury, and verdict and judgment rendered in favor of defendant;. Plaintiff brings error. The action was brought to recover possession of a certain heifer which the plaintiff claimed to own. His claim was that the heifer was raised on his father’s farm, and was purchased by him from his father; that he turned it into a certain pasture called the “Church Pasture;” that he missed it out of the pasture, and found it in the possession of defendant, and took it from him on his writ. His further claim is that soon after he missed the heifer, and learned the defendant had it, he had a talk with defendant, in which defendant promised to return it to him. Plaintiff gave a description of the heifer as a “natural mulley.” The defendant’s claim was that he was the owner of the heifer; that it was born and raised on his farm; that in the summer of 1900 he turned it out to pasture, and it escaped and went into the Church pasture, where he found it and took it ‘ away; that it was not a natural mulley, but had been dehorned. Considerable testimony was introduced by plaintiff tending to identify the heifer as a natural mulley and as his property. There was also considerable testimony introduced by defendant tending to show that it was his property, that it had been dehorned, and was not a natural mulley. These issues were fully and very fairly submitted to the jury.

It is claimed, however, by counsel for plaintiff, that the court erred in permitting defendant to give in evidence certain statements made by plaintiff in reference to the return of the heifer; that the defendant should not have been permitted “to give portions of a conversation not consisting of any admission or statement of any fact material to any issue in the case; that unaccepted offers, by way of compromise, cannot affect the legal rights of the parties.” It appears that the plaintiff was asked by his counsel to state certain conversations he had with defendant. He was permitted to state them. This conversation related to a settlement of the case between the parties before suit was brought. The defendant was then asked by his own counsel to state the whole talk had between them. We think this was competent. Plaintiff had given his version of the conversation. Defendant had a right to do the same. Defendant’s version had a tendency to rebut the claim made by plaintiff that defendant had agreed to return the heifer. We think this was competent, under the case of Steers v. Holmes, 79 Mich. 430 (44 N. W. 922).

We think we need notice but one portion of the charge. The court said:

“By preponderance of the.evidence, which the. plaintiff must have in this case, I mean that the testimony, when put in as to the claims of the respective parties, the evidence produced by the plaintiff must weigh a little more than that of the defendant. It must be enough to push down his side of the scale in order to be a preponderance of the evidence, which the law requires he should bring here before you in order to be entitled to recover in this case.”

It is the claim of plaintiff’s counsel that the use of the above language was equivalent to saying that “ evidence” and “testimony” are synonymous terms. If this was a misuse of the term “testimony,” it was almost immediately cured by the court in saying: ‘ ‘ Now, the verdict is to be found in the manner in which I have directed,— from the preponderance of the evidence.”

We have examined the other questions with care, and find no error which we think could in any manner be prejudicial to plaintiff so as to warrant a new trial.

The judgment must be affirmed.

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


text:
    WAGONER v. WAGONER.
    1. Divorce — Validity or Marriage — Presumptions.
    In a suit for divorce, it appeared that a former husband of complainant left his home and went to another State some 16. years previously, saying that he would- either return or send for her; that he had chronic diarrhea when he went away, and shortly afterwards, in response to letters of inquiry, she learned that he was ill; that she never again heard of him; and that, three years after his departure, believing him to be dead, she married defendant. Held, insufficient to overthrow the presumption of the validity of the second marriage.
    3. Same — Alimony.
    Where, in a divorce case, the testimony as to the husband’s property was unsatisfactory, but it appeared that he withdrew some $1,500 from a bank shortly before the suit was commenced, and he admitted having other property worth $800, an award of $600 permanent alimony was not excessive.
    Appeal from Bay; Shepard, J.
    Submitted October 10, 1901.
    Decided November 12, 1901.
    Bill by Martha A. Wagoner against James W. Wagoner for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      James T. Lawler, for complainant.

      Hurdis M. Beady (Simonson, Gillett & Clark, of counsel), for defendant.
   Moore, J.

The complainant filed a bill against defendant, alleging extreme cruelty, and praying for a divorce and permanent alimony. The circuit judge rendered a decree in accordance with the prayer of the bill. The de-' fendant has brought the case here by appeal. He alleges the proofs do not show a case of extreme cruelty. We cannot agree with him. It would profit no one to repeat the testimony here, but we think it clearly justifies the conclusion of the circuit judge that defendant was guilty of extreme cruelty.

It is alleged by way of defense that, when the parties to this action were married, the complainant had a living husband, and that defendant never was her husband. In this connection it becomes necessary to make a statement of the substance of the testimony. In May, 1883, the complainant, whose name was then Martha A. Harris, married one Hampton, and lived with him, keeping house at Saginaw, Mich. Their relations were pleasant. Hampton was a plasterer by trade. About 15 months after his marriage he went to a point near Louisville, Ky., for the purpose of getting employment. The arrangement with his wife was that he would either return to Saginaw, or send for her to come to him. He had chronic diarrhea when he left home. His wife did not hear from him after he went South, and she sent letters of inquiry, in reply to one of which Mrs. Haines wrote her from Louisville, Ky., saying her husband had been there and was sick, and told her if he did not get better in a few days he was going back home. In reply to later letters Mrs. Haines wrote she had not again seen or heard from Mr. Hampton. He never returned to Saginaw, and complainant testified she supposed he was dead. In 1887 the defendant began to pay attention to Mrs. Hampton. She testified that, in reply to an inquiry from him where her husband was, she told him she supposed he was dead; that she had not heard from him since he went away, and the only news she had of him was that he was sick, and told the circumstances of his going away; and Mr. Wagoner agreed with her, after she told him what she knew about Mr. Hampton, that he must be dead. She testified that, at the earnest solicitation of defendant, on Christmas day, 1887, she married him. The marriage ceremony was performed by a minister of the gospel, and the parties lived and cohabited together as husband and wife until March, 1900. Mr. Hampton had not returned to Michigan when the case was tried in the court below, and his wife never heard from him after he left Saginaw. Upon this statement of facts, can it be said the second marriage was invalid, and the court was not authorized to grant a decree of divorce ?

In the case of Kelly v. Drew, 12 Allen, 107 (90 Am. Dec. 138), the question arose as to whether the second marriage of a woman was valid, where she had lived separate from her first husband for about 4 years without hearing of him or his death at the time of her second marriage, and did not hear of him for 16 years afterwards. It was held the presumption was she was the lawful wife of the second husband. Justice Gray, speaking for the court, said:

“The state of facts offered to be shown by the witness was only that more than 20 years ago she was married to another man, and lived with him for a few months, and about 4 years afterwards married the defendant, without having heard of her first husband’s death. No evidence was offered that the first husband had been heard from for 20 years, or that he had not died or been divorced from her before her second marriage. Under the circumstances of this case, the presumption of the wife’s innocence in marrying again might well overcome any presumption that a man not heard from for 4 years before the second marriage^ or for 16 years afterwards, was alive and her lawful husband when she married the second time. Rex v. Inhabitants of Twyning, 2 Barn. & Ald. 386; Lapsley v. Grierson, 1 H. L. Cas. 505; Loring v. Steineman, 1 Metc. (Mass.) 211; Town of Greensborough v. Town of Underhill, 12 Vt. 604.”

In the case of Wilkie v. Collins, 48 Miss. 496, a husband left his home in Mississippi on October 30, 1859, and went to Louisiana on business, where he was last heard from by letter to his wife written November 30th of the same year, in which he said he was sick in bed, and would return as soon as able to travel. He did not return, and the wife, believing him dead, married again December 22, 1861. The absent husband was never heard of alive. The question arose, Was the second marriage valid? In deciding the case the court used the following language:

“About two years after Roberts left home, Mrs. Roberts married Wilkie. There is always a presumption that every individual conforms his conduct to the requisitions of duty, as prescribed by law. It belongs to universal jurisprudence that innocence of an act which the law forbids and denounces as criminal shall be presumed. Therefore, if a man or woman contracts a marriage in due form, the presumption is that the marriage is legal; that is, that there was no legal impediment in the way. It was very properly said in Powell v. Powell, 27 Miss. 785, that the ‘law favors marriage,’ and ‘requires clear testimony to invalidate it.’ The'superstructure of society rests upon marriage and the family as its foundation. The social relations and the rights of property spring out of it and attach to it, — such as dower, administration, distribution, and inheritance. All controversies, therefore, growing out of marriage, assume the dignity and importance of quasi public questions.
“The marriage of Mrs. Roberts with Wilkie is said to be bigamous, because, at the time it was contracted, Roberts had not been absent for five consecutive years without being heard from, and therefore the presumption did not arise that he was dead. Rev. Code 1857, p. 577, art. 29. The precise fact to be ascertained is whether Roberts was living when Mrs. Roberts was married the second time. If no other fact appeared but simply the marriage, the presumption is in favor of -validity. But there is also a presumption in favor of the continuance of life, which is only overcome by a protracted absence for the time specified. In such circumstances, founded on considerations of policy, and in favor of innocence, the presumption in favor of the marriage will prevail, as against that of the continuance of life, and it will devolve upon the disputant of the marriage to overcome it by testimony that the first husband was living at the time of the second marriage. 1 Greenl. Ev. § 35; Rex v. Inhabitants of Twyning, 2 Barn. & Ald. 386. In Rex v. Inhabitants of Harborne, 2 Adol. & E. 540, it was proved that a letter had been written by the first wife, from one of the colonies, only 20 days before the husband married the second time. This was deemed sufficient to warrant the presumption that the wife was living.
“The case reported in 2 Barn. & Ald. supra, arose in respect to a settlement in the parish. The woman, 12 months after the husband was last heard from, married a second husband, by whom she had children. It was held that it was rightly presumed that the first husband was dead at the time of the second marriage. This application of the principle was accepted and adopted in Spears v. Burton, 31 Miss. 547. The action was ejectment. The title was claimed by descent, cast upon the issue of the marriage, which was impugned as illegal because the marriage with Burton, the plaintiff’s father, took place within five years after the desertion of Bayard, the first husband; therefore there was no presumption of his death, and it was incumbent on the plaintiff to prove his death. The court, however, affirm the rule to be that the presumption is that the marriage was valid, and the onus was upon the defendant to show the contrary by proving the .first husband living at or shortly before the date of the second marriage. Gibson v. State, 38 Miss. 322, was a prosecution for bigamy. The court declare that there is no difference between the civil and criminal consequences when the fact of marriage in due form of law has been proved.
“ The presumption in favor of the marriage of Mary Elizabeth with Wilkie is greatly sustained and aided by the testimony. It was in evidence that her relations with her first husband, Roberts, were agreeable and pleasant; that he left home in the fall after the marriage to go to Louisiana on business; that he wrote several times to his wife. The last letter, written from a sick bed, stated that so soon as he recovered he would return home. He was represented as a delicate man, in feeble health. The correspondence suddenly ceasing, and Roberts not being heard from for quite a year, when Mrs. Roberts married again, begets the strong impression that his feeble frame succumbed to the disease which was upon him when he wrote the last letter to his wife, and that when she married Wilkie she was a widow. Such was the belief of the family. Connect this part of his history with the further circumstance that the other contestant offered no testimony that Roberts was ever afterwards heard of by his family connections and friends, and the inference is legitimate and strong that he died about the time supposed by his wife. The controversy originated about this administration in 1871, — 11 years after Mrs. Roberts supposed that her husband had died, and about 9 years after she had married Wilkie, the intestate; and yet in this long interval nobody has ever heard of him alive. At the time of Mrs. Roberts’ second marriage, the facts shown in evidence were sufficient to satisfy her that her first husband was dead. Acting on that belief, she married a second time. The last marriage cannot be invalidated except by proof that the first husband was living at the time, or so shortly before as to put upon her the necessity of proving his death.”

This case would seem to be on all fours with the case at bar. See Yates v. Houston, 3 Tex. 433; Carroll v. Carroll, 20 Tex. 731; Canady v. George, 6 Rich. Eq. 103; Cartwright v. McGown, 131 Ill. 388 (3 Am. St. Rep. 105); Boulden v. McIntire, 119 Ind. 574 (13 Am. St. Rep. 453); Johnson v. Johnson, 114 Ill. 611 (55 Am. Rep. 883).

The only remaining question calling for discussion is, Did the court err in the amount of permanent alimony he decreed? The testimony in relation to the amount of property owned by defendant is very unsatisfactory. This case was commenced on the 31st day of April, 1900. It was shown by the cashier of the Bay City Bank that on the 9th of April the deferidant drew from' that bank deposits amounting to 11,484.78, and that he made no deposits after that date. It was also shown that he had a quantity of real estate. The defendant offered no testimony in the court below, but he was called as a witness by the complainant, who attempted to show by him what property he had. His answers-were not frank, and, after some questions had been put to him, his counsel objected to his further examination, and the court 'sustained the objection. A stipulation is attached to the record stating that affidavits were filed upon the hearing of the application for temporary alimony stating that defendant’s real estate was worth not more than $660, and his personal property not more than $150,' and that he had no money in any of the banks of Bay City. The circuit judge allowed complainant $600 permanent 'alimony. In view of the situation of the record, we are not prepared to say this is excessive.

The decree of the court below is affirmed, with costs.

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


author: Hooker, J.

text:
    McLEOD v. CROSBY.
    1. Slander — Sufficiency of Declaration.
    A declaration for slander, alleging that defendant said, “M. stole it,” followed by a recital of circumstances showing the statement to have related to “ certain personal property” of a named corporation, is sufficient, where not demurred to, though it does not specifically describe the articles charged to have been taken. .

      2. Evidence — Court Files — Identification.
    The files in a judicial proceeding may be identified, so as to permit of their introduction in evidence, by one who obtained them from the clerk of the court.
    3. Malicious Prosecution — Evidence —Record in Criminal Case.
    In an action for malicious prosecution, a certified transcript from the record in the criminal case is not inadmissible because all of the entries are not included.
    4. Same.
    And a copy of the entry showing the rendition of a verdict of not guilty by direction of the court is sufficient, without proof of the formal judgment discharging the prisoner.
    5. Slander — Justification—Pleading.
    In slander for stating, with respect to personal property belonging to a corporation, that ‘-‘M. stole it,” a notice under the plea that defendant would prove that the statement was true, in the sense that plaintiff fraudulently sold and converted such property while in charge thereof, was insufficient to warrant proof of the truth of the statement, in that it did not assert broadly that defendant would prove plaintiff guilty of larceny or embezzlement, or would prove facts which, if proved, would have shown him guilty of embezzlement ; there being no averment that he was an officer, clerk, agent, or servant of the corporation.
    6. Same.
    But a notice alleging that, by selling and appropriating the proceeds of the property, plaintiff became guilty of larceny or embezzlement, was sufficient to apprise plaintiff that defendant relied on proving an embezzlement of the property ■ as a complete justification.
    7. Same.
    In slander for charging a person with stealing property, defendant may justify by showing that he embezzled it.
    Error to Montcalm; Wolcott, J., presiding.
    Submitted October 22, 1901.
    Decided November 12, 1901.
    Case by Dan McLeod against James S. Crosby for slander and malicious prosecution. From a j udgment for plaintiff, defendant brings error.
    Reversed.

      N. 0. Griswold (I. G. Palmer, of counsel), for appellant.

      V. PL. & PL. H. Smith, for appellee.
   Hooker, J.

The defendant has appealed from a verdict and judgment for $320 in an action for slander and malicious prosecution. The three counts for slander are substantially alike, and the following-quotation from the first will serve to make plain the rulings and points raised thereon:

“ * * * say of and concerning this plaintiff, in the presence and hearing of this plaintiff, Charles S. Fuller, and other divers good and worthy citizens of the State of Michigan, did speak, publish, and declare of and concerning said plaintiff the following false, malicious, and defamatory words, to wit: ‘McLeod stole it;’ meaning and referring fo this plaintiff, and meaning and intending to charge this plaintiff with having stolen certain property belonging to George Collin Company, a corporation organized under the laws of this State, of which the said James S. Crosby was president, and meaning and intending to charge, and give the persons who heard him to understand, that the said plaintiff had been guilty of the crime of larceny, and was a thief; that, at the time the said defendant uttered the aforesaid false, slanderous, malicious, and defamatory words, he had been claiming and stating that the said George Collin Company had lost and been deprived of certain personal property, and at the close of his said statement he said of and concerning the said plaintiff, in the presence of the said Charles S. Fuller and the other persons aforesaid, the said false, slanderous, malicious, and defamatory words, ‘McLeod stole it.”’

The count for malicious prosecution related to a prosecution of plaintiff on a charge of larceny, upon which the plaintiff was acquitted in the circuit court, where the judge directed a verdict of not guilty. The charge seems to have related to some logs belonging to the George Collin Company, of which company the defendant was president, which logs it was claimed had been sold, and the proceeds appropriated by the plaintiff.

Defendant accompanied his plea with a notice that, if he uttered the words “McLeod stole it,” they were uttered concerning certain property belonging to said company, and that plaintiff had previous to February 10, 1898, and during 1895 and 1896, been in charge of a large amount of personal property of said company, consisting of teams, tools, implements, and machinery for cutting, skidding, hauling, banking, floating, and manufacturing timber into logs, lumber, lath, and shingles, and that plaintiff, well knowing said property to belong to said company, fraudulently, and without the knowledge of said company or its president (the defendant), sold and converted a large portion of said property to his own. use, and caused or permitted other portions of said property to be taken away from the premises of said company and used and appropriated by others, and particularly by the relatives and friends of the plaintiff, “without leave or license so to do, and, without any right whatever to dispose of, use, and appropriate, sold and conveyed and appropriated the funds and proceeds thereof to his own use. And in this sense the defendant will prove the statement that ‘ McLeod stole it, ’ referring to the property of the said George Collin Company, to be true.” Also that, in relation to the malicious prosecution count, defendant would prove that he fully and fairly stated the facts to the prosecuting attorney, and was advised by him that plaintiff was guilty of larceny; and that he was not guilty of any malice, and that he did not cause such arrest without reasonable and probable cause. Also that he would prove in his defense that in October, 3897, plaintiff sold 50,000 feet of the shingle logs of the company, then stored in lakes adjacent to its mills, without authority or right, and appropriated the proceeds to his own use, and thereby became guilty of the crime of larceny or embezzlement, and was chargeable with both offenses, and that the defendant left the cause of action to the prosecuting officer, without malice.

The first point discussed relates to the counts for slander. Counsel for the defendant raised the point that they did not state a cause of action, inasmuch as they failed to state what property was referred to by defendant in his statement, “ McLeod stole it. ” The question is not raised by demurrer, and it is therefore improper to apply the test of technical pleading. The declaration shows that the remark applied to personal property of the George Collin Company. It does not specifically describe the articles taken, or mention shingle timber, but it was sufficiently specific to show that the plaintiff was charged-with stealing, as much as though the statement had been, “McLeod is a thief,” “McLeod steals,!’ or “McLeod has'committed larceny.” See Fowler v. Gilbert, 38 Mich. 292. If there is any force in the claim that the words “McLeod stole it ” do not charge a crime, for the reason that the use of the pronoun “it” made the charge indefinite and uncertain, because it may have referred to something not the subject of larceny, its force is lost when taken in connection with .a statement showing that it referred to personal property belonging to the George Collin Company, even if the use of the verb “stole” does not itself imply a larcenous taking of property which is the subject of larceny. The sufficiency of the declaration does not depend upon the statement of plaintiff’s counsel, made on the trial, that he claimed that reference was made to shingle timber merely.

One Smith, a lawyer, was called, and produced certain papers, purporting to be the files in a larceny case which had heen pending in the circuit court of .Mecosta county. He stated that they came from the office of the clerk of that county, as the criminal files in that case, and were obtained by the witness from said clerk as such. They were duly indorsed as filed, over a signature purporting to be that of said clerk. He also testified that they were the same papers which were used on the trial of the case. Upon such papers being offered in evidence, defendant’s counsel objected upon the ground that they were incompetent, for the reason that it is improper to prove public papers and records by a borrower of them, and that it did not appear that they were the original files. In the same connection, objection was made to the introduction of a certified copy of some of the orders made in said criminal case, for the reasons — First, there was no verdict of the jury or judgment shown; and, second, that the certificate was defective because it did not show that it was a copy of all of the journal entries. This testimony related to the count for malicious prosecution, and the testimony of Smith was competent to prove the identity of the original files. The certificate to the records was in proper form, and showed the copy to be a copy of the whole of the entries that it purported to certify. There was no attempt to certify all of the orders, nor was it necessary. The entries offered included the record of the rendition of a verdict of not guilty by direction of the court, and there was no occasion to strike out this proof because the excerpt did not include formal judgment of not guilty and discharge of the prisoner.

The defendant called the prosecuting attorney who prosecuted said criminal case, and sought to show by him that such prosecution was commenced by his advice and direction. It appeared that he went to the locality of the alleged crime with the defendant to investigate the matter, and talked with Mr. and Mrs. McQueen and others about it. He was asked by defendant:

“Q. Did he tell you anything about what the plaintiff in this case had said to him about these logs ?
' “Mr. V. H. Smith: I object to that as immaterial, irrelevant, and incompetent.
The Court: The objection is sustained.
Mr. Griswold: I take an exception, if you please.
“A. I did have something to do with the taking out of the warrant for the arrest of' McLeod on the charge of stealing the shingle logs. I directed the issuing of that warrant. I did not order the issuing of the warrant, the filing of the complaint, and the issuing of that warrant' upon the statements made to me by Crosby alone.
Q. Upon whose statements, and upon what investigation, did you make that order ?
“Mr. Smith: I object to that as immaterial. There is nothing material in this case but the question as. to Whether the advice is a shield and a protection.
“The Court: It is not a question, at all, of the good faith and diligence of the prosecuting attorney.
'“Mr. Griswold: No; surely not.
“The Court: The answer as given was proper, as the court understands it, whether or not it was done entirely on information furnished by Mr. Crosby, or from additional investigation made by himself. But I do not know that it is competent or material in this case to have the witness go on and state just what investigation he made. Is tha.t your offer ?
“Mr. Griswold: I offered to ask him the question on that very line. I thought it was material, and think so still, to show what information he had about it, and from what source, he obtained it.
The Court: I think witness may state in a general way what effort he made himself, independently of Mr. Crosby, in investigating it.”

The importance of this testimony .related to the information upon which the prosecuting attorney acted. We suppose the position taken to have been that, even if Crosby did not fully state the facts to him, it was immaterial, provided he ascertained them from other sources, and acted upon them in advising defendant to make the complaint. ' The court, on reflection, allowed an investigation of that subject.

In his charge, as upon the trial, the court limited counsel for the plaintiff to the claim that the words referred to logs. He instructed the jury that the notice in the plea was not sufficient to warrant proof that the statement was true. Counsel complain of this, and say, “The only reason conceived why the notice under the plea was not sufficient to warrant a finding that the words were true must be found in the fact that the plea does not mention the logs.” It seems obvious that the court was of the opinion that the notice was, at most, a qualified allegation of the truth of the charge, and did not offer a justification as broad as the charge. The charge was a simple charge of larceny. The first notice was that the defendant would prove that the plaintiff was guilty of larceny in a sense therein stated. If it be conceded, as claimed, that it was enough to prove the plaintiff to have embezzled the logs, still the learned circuit judge was correct in saying that this first notice was insufficient. It did not charge broadly that defendant would prove the plaintiff guilty of larceny; nor did it state that he would prove facts which, if proved, would have constituted embezzlement, for there is no allegation that it would be shown that he was an officer, clerk, agent, or servant of the Collin Company; nor did it state broadly that it would be shown that he embezzled the property of the Collin Company.

The third notice, however, which we presume the learned circuit judge treated as applicable only to the count for malicious prosecution, was equally defective in an attempt to state facts constituting embezzlement, but it contained a further allegation that, by selling and appropriating the proceeds of the property, he became guilty of the crime of larceny or embezzlement. This notice was broad enough to apply to all of the counts. Embezzlement is made larceny by statute (3 Comp. Laws, § 11565), and it is not unreasonable to say that an embezzler is a thief, or that embezzling is stealing, because larceny is stealing, and embezzling is larceny. Not all larceny is embezzling, but all embezzling is larceny. It may reasonably be claimed, therefore, that, when one says of another, “He stole from A. B.,” he may justify by showing an embezzlement from A. B. Under most, if not all, authorities, the notice must be as broad as the charge, in its offer to prove truth. See 18 Am. & Eng. Enc. Law (2d Ed.), p. 1070. It may be doubtful if a general notice that one will prove another a thief, or that he stole or embezzled, will be a sufficient answer to a general charge that “ he is a thief.” It would certainly afford an opportunity for a wide range in the proof, and would not give much information to the plaintiff of the proof that he should be expected to meet. See Torrey v. Field, 10 Vt. 353. But the charge in this case was not general, but specific, referring to property of the Collin Company. The notice was of necessity limited to it by the declaration itself. Furthermore, it purports to limit the proof to such property, and it states facts conveying information regarding the nature of the alleged theft. Again, the first notice contains the further information that the plaintiff was in charge of the property, which was implied by the statement in the third notice, by the allegation that he embezzled the property. Michigan has not adhered to the rule followed in some States; i. e., that a notice must be as certain and definite as a plea, and that “the true way to test the sufficiency of a notice is to inquire whether the matters contained in it, if pleaded specially, would be good on general demurrer.” See Shepard v. Merrill, 13 Johns. 475. While, in common with other States, its courts have held that the justification must be as broad as the charge (see 18 Am. & Eng. Enc. Law [2d Ed.], p. 1070, note), it has been said many times that a notice which fairly apprises the other party of the nature of the proposed defense is sufficient; and liberality of construction has been indulged where greater particularity in the notice might have been obtained by a motion to make it more specific, or demand for a bill of particulars in a proper case.

We are of the opinion that the notice was a sufficient notice that defendant relied upon proving an embezzlement of the property, and that such proof would establish the truth of the charge; and it only remains to inquire whether proof of embezzlement of property can constitute a justification of a charge that the plaintiff stole it. We have not been cited to any case throwing light upon this question by the defendant’s counsel, but we see no reason for holding that a man may not justify the calling a man a thief by showing that he has done a thing which the statute explicitly says shall constitute larceny. The fact that an indictment for larceny, in the ordinary form, will not cover the case (Bishop, Stat. Crimes, § 418) should make no difference, for it does not make the culprit any the less a thief. While we have not found an authoritative decision upon the point, the question is not altogether new. The charge of the learned circuit judge in the case of Youngs v. Adams, 113 Mich. 200 (71 N. W. 585), gave the defendant the benefit of such a rule; and we were careful to avoid a dictum upon the point in reviewing the case, which could bo affirmed without passing upon it. The case of Shepard v. Merrill, supra, cited by plaintiff’s counsel upon another point, seems to us to have also saved this or a similar question. The notice in the present case alleges the embezzlement of the property. The language is general, but embezzlement includes the elements of a statutory larceny, and, in conjunction with the other things mentioned, was a sufficient statement of a defense which we have already indicated to be, in our opinion, a proper one.

This conclusion requires a reversal of the judgment and the direction of a new trial, which is hereby ordered.

The other Justices concurred.


text:
    TATTAN v. CITY OF DETROIT.
    Municipal Corporations — Negligent Injuries — Notice of Claim — Sufficiency.
    While a charter provision, requiring written notice of a claim, for negligent injuries to be given to the city law department as a condition precedent to the maintenance of an action therefor, being in derogation of common right, should not be construed with unnecessary strictness against the injured person, a requirement that the notice specify the nature of the injury is not sufficiently complied with to support an action by a mere statement that the claim is for “personal injuries.”
    Error to Wayne; Donovan, J.
    Submitted October 22, 1901.
    Decided November 12, 1901.
    Case by Catherine Tattan against the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Warner & Codd, for appellant.
    P. J. M. Hally ( T. H. Tars'ney, of counsel), for appellee.
   Montgomery, C. J.

This is an action for personal injuries. The sole question presented in the case is whether the plaintiff served a notice upon the corporation counsel such as is required by the amendment to the charter of the city of Detroit, being section 46 of chapter 11 of the charter, as amended. This section reads as follows:

“No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof. The provisions of this section shall not be a bar to a suit for any injury for which there is now a lawful cause of action, but for every such injury suit shall be commenced within six months from the time when this act shall take effect.” Act No. 463, Local Acts 1895, § 2.

The injury to the plaintiff occurred on the 5th of July, 1897, and on the 17th of August, 1897, the following notice was served on the head of the law department:

“Detroit, August 17, 1897.
“Hon. Charles Flowers,
“Corporation Counsel,
“ Detroit, Mich.
Sir: You are hereby notified that on the 17th day of August, 1897, 1 filed a claim against the city of Detroit for the sum of five thousand dollars ($5,000), and petitioned the common council of the said city to pay me the said sum, as a just compensation for damages sustained by me by reason of personal injuries received on July 5, 1897, by my falling on a defective sidewalk in the said city. Said defective sidewalk was on July 5, 1897, situated on the south side of Cherry'street, between Sixth and Seventh streets, and extending from Seventh street to the first alley east of Seventh street.
“Yours, etc.,
“Mrs. Michael Tattan,
“15 Johnson Street, Detroit, Mich.”

There can be no doubt that this notice sufficiently described the time, place, and cause of the injury, but the learned circuit judge was of the opinion that the nature of the injury was not sufficiently specified. This statute is one in derogation of common right. It should not be construed with liberality against the right of an injured party to maintain an action against the city, but, on the other hand, should receive a reasonably strict construction. By other provisions of the charter it is incumbent upon an injured party to present his claim to the common council, and the case is then open to full investigation. This, as well as the notice to the head of the law department, must precede the institution of suit. As was said by the court in Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256):

“This notice is not a pleading, and the requirement should not receive so strict a construction as to make it difficult for the average citizen to draw a good notice, especially in view of the evident intention that a substantial statement should be sufficient, and the serious consequences of reliance upon a defective notice until after the expiration of the 60-day period.”

See, also, Wheeler v. City of Detroit, 127 Mich. 329 (86 N. W. 822); Wilton v. City of Flint, 128 Mich. 156 (87 N. W. 86).

But, while the rule for construing this notice is thus liberal, we cannot ignore an express requirement of statute. The statute, in terms, requires that the nature of the injury shall be stated in this notice. Beyond the fact that it is an injury to the person, rather than to property, there is no attempt in this notice to state the nature of the injury at all. We are of the opinion that this is not a compliance with the statute. The case of Lord v. City of Saco, 87 Me. 231 (32 Atl. 887), is directly in point upon this question. See, also, Brown v. Town of Southbury, 53 Conn. 212 (1 Atl. 819).

The judgment will be affirmed.

The other Justices concurred.