text:
    STARR v. WHITCOMB.
    Garnishment — Motion to Dismiss — Propriety.
    A motion by a garnishee defendant to dismiss the proceeding • on the ground that the principal defendant is a bankrupt, that the plaintiff and the trustee in bankruptcy are seeking to impound the same assets, and that the assets, if any, in the garnishee’s hands passed to the trustee by virtue of the adjudication in bankruptcy, should be denied without requiring plaintiff to traverse the facts set up in the motion, and the garnishee required to file his disclosure, upon which the inquiry may proceed in the statutory manner.
    Error to Wayne; Brooke, J.
    Submitted October 16, 190?.
    (Docket No. 60.)
    Decided December 30, 1907.
    Garnishment proceedings by Mary B. L. Starr against Edgar B. Whitcomb as garnishee defendant of James Vaughan. There was an order quashing the proceedings, and plaintiff brings error.
    Reversed.

      Graves & Hatch, for appellant.

      Herbert G. Munro and Jasper G. Gates, for appellee.
   Ostrander, J.

Plaintiff obtained judgment against a bankrupt upon his cognovit and, nearly a year after the adjudication of bankruptcy, began the pending garnishment proceeding, filing an affidavit in the usual form. Without filing a disclosure, the garnishee defendant moved for an order quashing the garnishment proceeding. No issue was framed, the court below granted the motion, and the plaintiff in garnishment assigned error. The validity of plaintiff’s judgment and her standing as a creditor whose demand will survive the discharge of the bankrupt are not questioned. It is the contention of counsel for the garnishee that it is affirmatively made to appear that the trustee in bankruptcy and the plaintiff creditor seek to reach and impound the same assets of the bankrupt, that all demands of the bankrupt against the garnishee passed to the trustee by virtue of the adjudication in bankruptcy; that plaintiff, if she disputes these facts and claims there is property the title to which did not so pass, should have traversed the allegations made to support the motion so that in this proceeding her right to proceed further may be determined.

It does appear that plaintiff proved her claim against the bankrupt’s estate, that her demand arose prior to the adjudication, that she does seek in the garnishment proceeding to reach and impound money and property which the trustee in bankruptcy, in a pending suit instituted by him against the garnishee defendant, also seeks; or, as recited in a stipulation entered into by the trustee, by the same counsel who represent the plaintiff in garnisment, by the plaintiff and by the defendant in garnishment, the trustee makes certain claims and demands in behalf of the bankrupt estate against the garnishee defendant who denies the validity of all of said claims and the plaintiff Starr asserts the right to enforce against .said defendant a portion of the same claims and demands which the said • trustee is endeavoring to enforce. It appears by the allegations of the bill filed by the trustee that the bankrupt was a retail dealer in pianos in Detroit, and had become indebted to the garnishee defendant; that the property in the hands of defendant, which the trustee seeks, is a large number of piano contracts and pianos delivered to defendant by the bankrupt before the adjudication. It is undoubtedly the law that the creditor may not pursue and subject to payment of his demand assets of the bankrupt existing at the time of the adjudication and not abandoned by the trustee. Title to all such assets, with the exclusive right to recover and possess them for the benefit of the bankrupt’s estate, is vested in the trustee. The power and duty of a court, upon proper showing, to interrupt and dismiss proceedings instituted by a creditor to recover property, the title to which is in the trustee, is not denied. In this proceeding it is asserted by the creditor that the defendant has property, etc., belonging to the bankrupt and is indebted to him. Defendant alleges that if he had any property, etc., at the time of service of the writ, the title to the same would have been by virtue of the premises vested in the trustee, for which reason he cannot be made liable to the plaintiff in the garnishment suit. We are of opinion that the issue is not one which can properly be tried upon affidavits. If tendered, as it may be, by a disclosure, it is an issue which plaintiff in garnishment is entitled of right to investigate according to the statute method. This method would be, in many respects, precisely reversed, if the plaintiff in garnishment is required, at the instance of defendant, upon a motion to dismiss, to raise and have determined the precise issue which her affidavit and the disclosure will present. We are therefore of opinion that the order of the court dismissing the garnishment suit should be reversed and that the defendant in garnishment should make disclosure. As the parties have stipulated that the garnishment suit may be tried before the court without a jury at the same time that the chancery case is tried, defendant is not likely to be greatly embarrassed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    GOODES v. LANSING & SUBURBAN TRACTION CO.
    1. Evidence — Opinions—Nonexperts—Competency .
    Nonexpert witnesses, passengers in an electric car which left the track, may express an opinion as to the speed at which the car was traveling at the time. •
    2. Death — Damages—Instructions—Sufficiency.
    In an action for the death of one who left surviving him a widow and child, instructions upon the subject of damages and the use of the expectancy tables in computing the same, examined, and held, not open to the objection, construed as a whole, that they charged the defendant with damages twice, covering the same period, nor that they were so ambiguous and uncertain that the jury could not compute the damages with any degree of certainty.
    Error to Genesee; Wisner, J.
    Submitted October 18, 1907.
    (Docket No. 92.)
    Decided December 30, 1907.
    Case by Fred W. Goodes, administrator of the estate of George W. Burton, deceased, against the Lansing & Suburban Traction Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Moore, Brown, Miller & Ladd, for appellant.

      Lyon & Moinet, for appellee.
   Moore, J.

This is an action brought by the administrator of the estate of George W. Burton, deceased. Plaintiff’s decedent, George W. Burton, took defendant’s train in the city of Lansing on August 20,1905, for the city of St. Johns. The train consisted of an electric motor car and trailer. The motor car was a closed car having trucks at both ends, the trailer an open car with a single truck under it without any means of propelling itself. Mr. Burton was in the trailer car, which, when on a down grade and at a curve, left the track. Mr. Burton was thrown from the ear and received injuries which in the course of a few hours proved to be fatal. He left a widow and one child. From a judgment in favor of the plaintiff the case is brought here by writ of error.

The first group of assignments of error calling for discussion relate to the testimony of several witnesses as to the speed of the train. It is claimed it was not shown the witnesses were qualified to express an opinion, and also that it was not competent to receive the opinion of a witness who was a passenger in an electric car as to its speed. The testimony was properly received under Mertz v. Railway, 125 Mich. 11, and the cases there cited, and Garran v. Railroad Co., 144 Mich. 26.

Error is assigned upon the refusal to give certain of defendant’s requests to charge. Certain of defendant’s requests were given. Those not given were either not correct statements of the law or were fully covered by the general charge of the court.

Error is assigned upon the charge as given. Counsel say “the charge is clearly prejudicial as, under the charge of the learned circuit judge, the defendant is charged ¿with damages twice covering the same period, and the charge is so ambiguous and uncertain that the jury would not have been able to compute the amount of damages with any degree of certainty.” Before we can decide this contention intelligently, we should consider the material parts of the charge bearing upon that subject, which in part are as follows:

Requests presented by defendant:

“ ‘ In determining the amount of damages the plaintiff shall recover, if any, I instruct you, that you shall take into consideration the uncertainty of life as well as the expectancy of life as shown by the mortality tables introduced in evidence by the plaintiff in this case as applied to the life of the deceased and the surviving widow and child.’ * * *
“ The fifth one I give you:
“‘I instruct you that the damages that can be recovered by plaintiff in this case, if any, cannot exceed the expectancy of the life of the deceased, George W. Burton.’
“ And the tenth I give you as follows:
“ ‘ If, in your deliberations, you come to the question of damages, I instruct you that in making your computation as to what amount of damages plaintiff is entitled to recover, you shall take into consideration not only what the deceased was earning at the time of his death, and his prospects for his increasing his earnings, but shall also consider the likelihood of the earnings of the deceased becoming less during the latter years of his life had he lived, and also any period of the time that his earnings might have ceased, due to sickness or other causes, if any.’
“ I will add to that, that in your judgment in any way would lessen his ability or his desire to contribute to his family. * * * ”
In his general charge: • “If you find for the plaintiff you must give only such sum as will fairly and reasonably compensate the widow and child for their loss, or such sums of money as you may find the husband and father would have contributed to them during the minority of the child and the life of the widow. * * *
“ But if you find this railway company is liable to the administrator of that estate for the death of Mr. Burton then you will first ascertain what sum Mr. Burton was contributing to his wife and child per year, and if you, find that such contribution would naturally and surely increase in the future you will take that into consideration. * * *
“Now, when you have ascertained the amount that he was contributing and would contribute up to this date, you will set that sum aside, because whatever sum he was paying and contributing he would pay and contribute up to this time is due and payable now, and nothing can be deducted from it, so you will set that sum aside. Now you will remember he died on the 20th of August, 1905. You must find the amount his contribution would be to the widow and child from that date up to the 10th day of January, 1907. You will set that sum aside and let it constitute a sum by itself. Then you will determine the expectancy of life of the child; for instance, you will determine whether, in your judgment, the child, from the evidence in the case and from the appearance of the child itself as you have seen it here about the court-room, whether in your judgment the child will live to be 21 years of age, and whatever time you will determine, you do determine the child will live, why you will fix that as his expectancy of life. You will then consider the expectancy of the life of the widow and the expectancy of the life of the husband and father, and if you find that the expectancy of the life of the widow is less than you should find that the expectancy of the life of the husband is, then you will base your calculation on the expectancy of the life of the widow. . In any event it must not exceed what you find to be the expectancy of the life of the husband, because the tables that are offered in evidence here show the expectancy of the wife to be 39 years and the expectancy of the husband to be 38 years, but you cannot go beyond the life of the husband. If you find that the expectancy of the widow is less than his expectancy, then you must use her expectancy in the calculation that you make.
“Now, having done that, having fixed those various expectancies, you will determine the amount of contribution and as it is payable in advance now for all the time that you shall fix, it must be determined on the principle of annuities, you must give such a sum as from year to year put at interest at five per cent, would give the whole sum that you find, so you will take the sum of the contributions as you find it to be, and for the first year of the expectancy you will divide it by 1.05, and the sum that you get by that division you will set one side and keep it one side, right under the sum that you have already set aside for the sum that is due up to this date. You will then take the second year using the same sum that you have fixed only divide that sum by 1.10, and set that sum in a column that I have mentioned. The third year you will divide that sum by 1.15, and set that sum aside and figure in that way up to 21, until you find the child will become 21 years of age. Now, up to that point you will use the entire sum of what you find to be the contribution, but when you reach that point then in my judgment you must separate and you must stop the contribution to the child, and from that time on use the sum that you find.the contribution would be to the wife, having deducted that sum that would go to the child and then continue with that figuring on until you have reached the full expectancy of the life of the widow, using as I say an additional five for every year as you would go along, and carrying these sums out after you have made that computation, then add up all those sums that you have carried one side, and that would be the amount of your verdict.”

We must assume the jurors were intelligent men and that they considered the entire charge. The effect of the charge was to say to the jury that the tables, when Mr. Burton died, showed his expectancy of life to be 88 years, and of his wife to be 39 years; but that they were not controlling, and that the uncertainty of life as applied to the deceased, the widow, and the child must also be considered ; that as to the widow her expectancy of life must not be exceeded nor must the expectancy of the deceased be exceeded. That as to the child his expectancy must not be exceeded, nor must the expectancy of his father be exceeded, nor could damages be allowed on his account after he became 21 years of age. That as to the widow and child, as they were both alive at the time of the trial, the period of time from August 20, 1905, when the accident occurred, to the date of the charge, January 10,190?, was no longer an expectancy, but was a certainty, and must be so treated in the computation. That as to the future of the widow, child, and deceased the matter was an expectancy and as the judgment was for a sum then due, these expectancies must be reduced to their present worth. See Rouse v. Railway, 128 Mich., at page 155. When the charge is read as an entirety we do not think it can be said to have misled the jury. The other assignments of error do not call for discussion.

Judgment is affirmed.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    GRIFFIN v. MARLETTE STATE BANK.
    1. Appeal and Error — Directed Verdict —Propriety —Examination op Evidence.
    The rule that on error to a judgment on a directed verdict this court will read the testimony most favorably to appellant does not apply where the position of counsel for appellant was that the court below should dispose of the case.
    2. Banks and Banking — Certificates op Deposit — Liability-Delivery to Cashier.
    Where defendant bank, through its cashier, received from plaintiff certain certificates of deposit issued by it, for which he gave receipt and agreed to pay on demand, and on demand the bank refused to pay on the ground that the cashier had canceled the certificates and absconded with the money, the bank was liable to plaintiff irrespective of whether he indorsed the certificates at the time of their surrender.
    Error to Sanilac; Beach, J.
    Submitted October 18, 1907.
    (Docket No. 103.)
    Decided December 30, 1907.
    Assumpsit by «Tosiah Griffin against the Marlette State Bank for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Phillips & Jenlcs, for appellant.

      G. F. Gates, for appellee.
    Plaintiff declared upon the common counts in assumpsit and in his bill of particulars he stated his claim to be money deposited with the defendant for which two certain certificates of deposit were received,—
    “By the terms whereof said defendant was to repay the amount thereof, to wit: Six. hundred dollars with the interest thereon to the plaintiff or his order upon the return of said certificates, which certificates were duly returned to the defendant on to wit the fifth day of October, 1903, $600.
    “ To amount due plaintiff from the defendant upon the surrender of two certificates of deposit, $600, and interest thereon.
    “To money deposited with the defendant by plaintiff, :$600.”
    With the plea of the general issue the defendant bank gave notice that it would show that, if the defendant was at any time indebted to plaintiff, the indebtedness had. been fully paid and satisfied. Being holder and owner of two certificates of deposit for $300 each, issued to him by defendant, plaintiff, on October 5, 1903, about to go to California, and wishing to arrange for obtaining money there in case he had use for it, left the certificates with the cashier of the bank. He denies that he indorsed them. He did take a receipt for them, and for a note given by his son, signed by C. L. Messer, the cashier, who did not, in signing it, designate himself as cashier. Plaintiff’s version of the arrangement is:
    “ I will leave the deposits here in the bank with, you, and if I get strapped or need money when I am out there, you will understand sending me this money better than I do. I will write to my son James first, and he will come in and see you, and you can send me this money. I will leave this receipt with my son James and if I want money I will write to him.”
    Plaintiff returned in about two months, not having called for any money. He called at the bank for and received the note. He did not call for the certificates of deposit, nor, at the time, see the cashier. It is a reasonable, and perhaps a necessary, inference from this record that the cashier, Messer, on or about April ?, 1904, absconded, and that before leaving he took the money represented by these certificates, stamped them with the stamp of the bank “Paid April 5, 1904. Marlette State Bank, Marlette, Mich.,” and filed them with other canceled certificates. When produced by the bank, they bore the indorsement of the plaintiff. Later, plaintiff took his receipt to the bank where it was exhibited to the bank officers, who denied any liability on the. part of the bank and informed plaintiff that the certificates were paid and canceled. Under date March 10, 1905, a proof of claim, apparently made, signed, and verified by plaintiff, was presented in the district court of the United States for the eastern district of Michigan, in bankruptcy, in the matter of Clarence L. Messer, a bankrupt. The demand is therein stated to be:
    “Money had and received by said Clarence L. Messer in accordance with the terms of receipt, a copy of which is hereto attached; that no part of said debt has been paid, and that there are no set-offs or counterclaims to the same; that no note has been received for said account, nor has any judgment been entered thereon except as stated above, and that deponent has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of security for the said debt whatever.”
    Plaintiff denied his signature to the proof of claim, denied his appearance before the notary, denied that he had ever to his knowledge filed such a claim. He also denied his signature to a power of attorney, dated January 13, 1906, given to C. F. Gates, Esq., to represent him in the bankruptcy proceedings, although it is clear that he did sign it and upon the advice of Mr. Gates withdrew his demand. Under the last-mentioned date, he withdrew his claim in the bankruptcy proceedings and in a separate instrument revoked any and all powers to attorneys except the one to Mr. Gates. The testimony having been concluded, defendant presented certain requests to charge and asked that a verdict be directed upon the grounds set out in the requests, and stated:
    “ The principal ground is that the plaintiff cannot maintain the action in the form in which he has commenced it. The declaration in the case is on the common counts in assumpsit, and one ground on which I ask the direction is that there is a variance between the pleadings and proofs. The action of assumpsit may be maintained for money had and received, if there was no written evidence existing which contained a condition. When that money was placed in the bank, it required as a condition of repayment that the certificates be returned properly indorsed. Consequently this plaintiff is in no position to maintain an action until he indorsed the certificates and demands payment. This he never did. Assuming that the officer of the bank had authority, and assuming, for the purpose of argument, that he was within the scope of his authority, plaintiff’s remedy if he had any, was to demand possession of the certificates. This he never did,. and he cannot suó and recover with the certificates in their possession without any demand. After he had made demand for possession of the certificates and been refused, he might then maintain an action for their value, but the bank is entitled to presentation of the certificates with his indorsement on the back before he can recover payment. For these reasons we are entitled to a verdict in the case.”
    Thereupon the following colloquy between court and counsel occurred:
    *c The Court: I think the practical question in this case is whether the plaintiff truly indorsed the certificates or not. If he did indorse them, the bank is protected in the payment and authorized to pay them.

      “Mr. Gates (attorney for plaintiff): When a man gives to the bank cashier indorsed paper, charging it to an open account, isn’t the bank held ?

      “ The Court: That is not your claim.

      “Mr. Gates: That is exactly our claim, and we make it in the declaration and bill of particulars, we surrendered it to the bank. The whole theory of our case is that on the 5th of October, 1903, we surrendered these certificates to the bank in that shape; that the bank was satisfied, that is the charge in the bill of particulars.
    “ The Court: I will say, Mr. Phillips (attorney for the defendant), that under the testimony the transaction was a mere depositing of these certificates with Mr. Messer as custodian. The other question is this: These certificates were issued to this plaintiff and his claim is that he never received the money upon them. The claim of the bank is that they had his indorsement and that the bank had paid them. There is a sharp issue.

      “ Mr. Phillips: The bank does not claim that they, ever paid Mr. Griffin any money on them. There is no claim that it did. Defendant claims that by plaintiff’s indorsement he put it in the power of anybody to draw it and the bank is protected by the indorsement.
    “ The Court: That is about my position.
    “ Mr. Phillips: I understand if that is found to be a true indorsement, there is no liability on the part of the defendant.
    “ The Court: It would come pretty near that.”
    Counsel for the plaintiff made his opening argument to the jury and was followed by counsel for the defendant who, in the course of his argument, said:
    “As I understand the position of the court in this case, the one principal question for you to determine is whether those are the signatures of the old gentleman on these two certificates of deposit, and the determination of that question in the affirmative, that they are his signatures, practically warrants a verdict for the defendant in this case.
    “ The Court: Mr. Phillips, that last statement as to the position of the court, I think you want to add to that further that if the jury should find that the paper was actually paid,—

      “Mr. Phillips: I would like to have the court explain that, because it would make a material difference in my argument. I would like 'the court’s opinion on it.

      “The Court: In the ordinary course of banking business, the indorsement of a certificate of that kind and passing it to the cashier, or the indorsement of such paper and putting it afloat would deprive the payee of any rights upon that certificate.

      “Mr. Phillips: That is substantially the same thing, your honor.

      “The Court: But that, coupled with the testimony of the plaintiff in this case, that indorsement would not be conclusive, but the jury must find as a fact from that indorsement and anything connected with the paper, and the testimony pertaining to it, that it was paid.

      “Mr. Phillips: Does that mean paid to the plaintiff ?

      “The Court: Paid to the plaintiff.

      “Mr. Phillips: Your honor, under that state of facts, might practically direct a verdict for the plaintiff in this case. We have not made any claim that the plaintiff got that money and have made no proof and are not in position to prove that. This would destroy the effect of the other proposition which your honor makes. There is no proof in the case that the plaintiff got the money. The position we assume is this: Under the proofs in this case, assuming that the indorsements on the back of the certificates are in the handwriting of plaintiff, under his own testimony he put Mr. Messer in a position where he could take advantage of the bank, and it is immaterial whether Messer took the money himself and put in those certificates. If your honor is of a different mind, there is no question left for the jury to determine. My contention is that when he indorsed the certificates under the circumstances that he states and gave them to Messer, if Messer abstracted the money from the bank and paid these certificates, that there was a sufficient payment so far as this plaintiff is concerned, and he cannot recover.
    “ The Court: That involves the other question, whether he received them as an individual or cashier.

      “Mr. Phillips: That is a question for your honor’s determination, it strikes me.

      “ The Court: It is also a question of fact.

      “Mr. Phillips: Upon what is there a dispute? The circumstances of delivery to Mr. Messer are all shown by the plaintiff’s testimony. Upon that there is no dispute, no contradiction of it.

      “The Court: I had coupled my ideas that I had expressed here with a contrary proposition growing out of the testimony here, the plaintiff’s denying that signature.

      “Mr. Phillips: Yes, I admit that, your honor, and that was the proposition I state. If it is found as a fact by this jury that he did sign those certificates, and those are his signatures, then, if the court please, if your honor thinks we must then go ahead and show that he actually got the money on them, your honor directs a verdict for the plaintiff in the case.

      “ The Court: Coupled with the further fact, if found, as to whether he held them as cashier or as a simple custodian of valuable papers.
    “ Mr. Phillips: There is no dispute of fact there. That is the proposition I made to your honor before. There is no dispute as to the manner in which that delivery was made. That testimony all comes from the plaintiff.

      “ The Court: Yes, but the other fact is there’ as to whether that was his signature when he indorsed them.

      “Mr. Phillips: That is an outside proposition.

      “ The Court: No, that is coupled right with the question of fact as to whether he received them as cashier or as an individual.
    “ Mr. Phillips: Let us assume that it was admitted that the signature on the back of the certificates was the signature of the plaintiff.
    “ The Court: Yes.

      “Mr. Phillips: What question is there left for the jury under your honor’s view ? The question of the capacity in which Messer received those certificates is not in dispute, so that it becomes the duty of the court, as I understand it, to dispose of that as a matter of law. We have asked for a direction and are entitled to it on that proposition.
    “ The Court: Even if it is found as a fact or admitted that that signature is a true signature made at the time of the delivery of the papers to Mr. Messer, you cannot separate him as an individual from cashier of the bank. It was his duty either to pay the cash, or give credit.

      “ Mr. Phillips: I don’t know as I get that proposition.
    “ The Court: Why if it is admitted or found as a fact, that plaintiff made that signature at the time of delivery of those certificates to Mr. Messer, then it was the plain duty of Mr. Messer, and it was his duty as cashier, to pay cash for them, or give credit on the books of the bank for the amount.

      “Mr. Phillips: If he didn’t do either one, the plaintiff is entitled to recover ?
    “ The Court: Yes.

      “Mr. Phillips: I take an exception to that statement and I do not care to argue the case further'.
    “ The Court: Well, the verdict will be directed.”
   Ostrander, J.

{after stating the facts). Ordinarily, when a verdict is directed by the trial court, an appeal is taken and it is necessary for this court to examine the testimony in the case, it will be read most favorably to the appellant. The rule cannot be applied in this case, because it appears that the position assumed by counsel for appellant was that in any event the court should dispose of the case. But one construction can be reasonably given to the language of counsel when considered with the undisputed evidence and the pleadings. It is an admission that the bank, through its cashier, received from plaintiff the evidences of its indebtedness to him, did not then pay him the money, agreed to thereafter pay it to him upon his demand and when demand was made, by the production of the cashier’s receipt, refused payment upon the ground that the money had been paid upon the plaintiff’s order. The only matter of defense set out with the plea is payment. Assuming that plaintiff indorsed the certificates and surrendered them to the bank, receiving in lieu of them the cashier’s receipt, it is clear that the bank has not paid him and has refused payment. If he did not indorse them, it has not paid him. It cannot be said, as matter of law, that the court below was in error, and the judgment is, therefore, affirmed.

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


author: Grant, J.

text:
    BIGELOW v. SHEEHAN.
    1. Appeal and Error — Right of Review — Waiver — Acceptance of Benefits.
    Where, after a decree for specific performance has been rendered and complainants have paid the consideration into court, defendant stipulates that a portion of the consideration money paid in may be applied to satisfy a mortgage on the premises, his act amounts to a waiver of his right to a determination on appeal of the validity of the contract on which the decree was based.
    2. Equity — Creditors’ Suit — Laches—Diligence—Sufficiency.
    Where complainants were defeated in their attempt by cross-bill in foreclosure proceedings to subject defendant’s interest in certain mortgaged lands to the payment of their execution, they acted with sufficient diligence where they filed their bill in aid of execution as soon as they learned from the opinion of this court in a subsequent case that, by a secret agreement between mortgagor and mortgagee, the mortgagor, their debtor, still had a substantial interest in the lands.
    3. Judgments — Res Judicata — Persons Concluded — Creditors.
    Where an assignee of a mortgagor was successful in his suit against the mortgagee to enforce a secret agreement between mortgagor and mortgagee providing for a sale of the lands and extension of the time for payment, the deoree was not res judicata of the validity of the assignee’s title as against creditors of the mortgagor not parties to the suit.
    4. Fraudulent Conveyances — Mortgages—Secret Agreement Between Mortgagor and Mortgagee — Defrauding Creditors.
    Though an agreement between a mortgagor and mortgagee providing for a sale of the lands and an extension of the time for payment is not per se fraudulent as to creditors, being ■ presumptively for the benefit of the mortgagor’s creditors as well as himself, the keeping of it a secret and the use of it for the purpose of defrauding creditors render it void ab initio and the original bona fides of the parties becomes immaterial.
    5. Equity — Pleadings—Defects—Disregard—Just Decree.
    When all the parties and the subject-matter of the suit are before a court of equity, and the proofs show that a decree can be entered doing exact justice to all, technicalities in pleadings are to be overlooked.
    6. Same — Creditors’ Bill — Sustaining as Bill by Administrator.
    A bill in aid of execution against assignees and the administrator of a deceased debtor, all interested parties being before the court, and complainant and the administrator so stipulating, may be regarded as a bill filed for the benefit of the administrator for the benefit of all creditors of the debtor, irrespective of whether by reason of the lapse of time the bill cannot be sustained on the theory upon which it was filed.
    Cross-appeals from Wayne; Mandell, J.
    Submitted October 21,1907.
    (Docket No. 96.)
    Decided December 30, 1907.
    Creditor’s bill and bill in aid of execution by Albert E. Bigelow and Charles A. Bigelow against Robert C. Sheehan, John L. Murphy, William H. White, James A. White, and Thomas White, copartners as William H. White & Company, and others. Defendants White filed an answer in the nature of a cross-bill for the specific performance of a contract with defendant Murphy. From a decree dismissing the bill and granting the prayer of the cross-bill, complainants and defendants Sheehan and Murphy appeal.
    Reversed, cross-bill dismissed, and decree entered for complainants.

      Gillett & Clark, for complainants.

      Walker & Spalding, for defendants Sheehan and Murphy.

      J. M. Harris, for defendants White.
    Two suits growing out of the transactions here involved have been decided by this court. (Farwell v. Bigelow, 112 Mich. 285; Sheehan v. Farwell, 135 Mich. 196.) A reference to them is necessary and will aid materially in understanding the issues in this case.

      Cook had given Farwell a mortgage covering a large tract of land in Montmorency and Otsego counties, a piece of real estate in Detroit, and lands in Canada. Farwell filed his bill to foreclose this mortgage upon the lands in Michigan in the Wayne circuit court, in chancery, on August 1, 1894. The Bigelows, residents of Michigan, were judgment creditors and had levied upon the Michigan lands. They were therefore made parties to that foreclosure suit. Beside other defenses they there asked to have the assets marshaled and the Canadian lands first sold in payment of the mortgage debt. This relief was denied them, and a decree was entered fixing the' amount due at $23,333. That decree was affirmed by this court in 112 Mich. 285.
    While that suit was pending Cook and Farwell entered into an agreement which was the subject of the suit in Sheehan v. Farwell, 135 Mich., and found on page 198. By that agreement Farwell was to hold the lands for sale for two years, and “ to sell them at best price obtainable, subject to the approval of Cook, ” etc. Farwell repudiated that contract, and Cook in June, 1898, commenced suit in a Canadian court to enforce it. Meanwhile Farwell had sold certain of the Canadian lands to his wife for $25,000-An accounting was had in the Canadian court, and the amount found to be due from Cook to Farwell in the Michigan suit was $9,308.16, and decree entered for the payment of that amount by Cook to Farwell. Sheehan was made an appointee by Mr. Cook to receive a conveyance of the lands from Farwell upon payment.
    Murphy obtained from one Coffee, of Toronto, Canada, a loan of $12,000 for which Coffee took a mortgage as security executed by Sheehan to him (Coffee). Sheehan also gave Mr. Coffee four notes of $1,000 each, secured by a second mortgage upon the same lands, which notes were placed in the hands of Mr. Murphy. Subsequently Mr. Sheehan, on July 30, 1901, filed his bill in the circuit court for the county of Wayne to enforce the contract between Farwell and Cook, and established by the Canadian decree, and for a conveyance of the lands to him. The facts in that case are fully stated in Sheehan v. Farwell, supra, and need not be repeated here. A decree was entered sustaining Mr. Sheehan’s claim, and that decree affirmed in this court.
    The Bigelows were not parties to the suit in the Canadian courts or to the suit in the Wayne circuit, and knew nothing of them until the opinion of this court was published in the Detroit Legal News in January, 1904. They thereupon promptly instituted this suit, filing the bill February 8, 1904. The bill is framed both as a creditor’s bill and a bill in aid of execution.
    Cook, Farwell, and Coffee are deceased, and their representatives are made parties defendant. Mr. Murphy, claiming to act by authority of Sheehan, made a contract with the defendants White for the sale of these lands to them at the price of $40,000. This contract was made by correspondence between Murphy and the Whites. The Whites paid $1,000 thereon which was received by Murphy. The Whites were made parties defendant and answered setting up their contract and filing a cross-bill, praying a specific performance thereof. Issues were duly joined by the proper pleadings, proofs taken in open court, and decree entered for the Whites decreeing a specific performance of their contract with Murphy and Sheehan, and dismissing the complainants’ bill. After the decree was rendered the defendants White paid into court the sum of $47,485.47, the amount of the purchase price and interest thereon.
    By consent of Murphy and Sheehan, the sum of $23,180.92 was withdrawn and paid to the proper representatives of the Coffee estate in satisfaction of the mortgage. The balance remains in the court to be disposed of as the court shall determine. Complainants appeal from the decree dismissing their bill, defendants Sheehan and Murphy appeal from the decree for specific performance of the contract.
   Grant, J.

(after stating the facts). The action •of appellants Sheehan and Murphy in consenting to a withdrawal from the funds in the hands of the court of the amount due upon the Coffee mortgage and its application in payment and discharge thereof, renders a determination of the validity of the contract for the sale of the lands unnecessary. This disposal of that portion of the fund was equivalent to a payment to them. Their^ appropriation of it was an affirmance of the decree, a ratification of the contract, and a waiver of appeal. Neither law nor equity will permit a litigant to accept from his opponent the money which he denies his opponent owes him and then continue the litigation to an appellate court.

The remaining question involves the rights of complainants as creditors of Cook as against Sheehan and Murphy. Without detailing the evidence we have arrived at the following facts:

(a) Complainants have been diligent in the pursuit of their remedy against their debtor Cook,- and other parties claiming interests under him; by the action of the Canadian court and of Cook and Farwell the amount of the lien upon the Michigan lands was reduced to $9,308.16,— thus was accomplished one of the objects which these complainants sought in the mortgage foreclosure suit in 112 Mich. 285; they were financially unable to redeem from that decree; by a secret agreement between Farwell and Cook, Farwell’s mortgage lien was continued,' and Cook obtained the right to redeem upon payment of a little more than one-third of the decree. Complainants acted promptly upon learning of this agreement through the publication of the opinion of this court.

(b) The Michigan lands were, at the time of the alleged conveyance from Cook to Sheehan by his appointment in the Canadian court to receive the title, worth about twice the amount of the Coffee mortgage; Sheehan, in the bill filed by him on June 30, 1901, to enforce that agreement, alleged under oath that the lands were worth at least $38,000. Two years and a half afterwards Murphy, acting for himself and Sheehan, contracted to sell the timber lands for $40,000, which sale did not include the land in Detroit, worth between $3,000 and $6,000.

(c) Sheehan was a young man, married, a relative by marriage of defendant Murphy, a clerk with' a small salary, without property or any financial responsibility. He was the mere puppet of Murphy, the controlling actor in the transactions, was completely under the control of Murphy, and acted whenever and wherever Murphy directed. He did not invest a dollar; the only money used in the deal was that obtained from Coffee by Murphy on the mortgage. In his bill, filed to compel the enforcement of that agreement by Farwell, Sheehan alleged that “ Cook appointed him to pay the said moneys adjudged in said judgment [the judgment obtained in suit of Cook v. Farwell], and to take conveyance of the lands described therein from said Jesse H. Farwell.” We find that Mr. Sheehan’s testimony is unworthy of credit.

(d) Murphy invested no money, and was careful not to make himself in any way liable. It is evident that, under his representations, Coffee, the mortgagee, relied solely upon the value of the land in making the loan. Under Murphy’s statement Cook had little if any other property, was sorely in need, and Murphy agreed with him that he should have half of the surplus — about $5,000— after Cook’s debts to Farwell and to him (Murphy) were paid, and Sheehan was to have all that could be made over and above the mortgage. Murphy was employed by Cook to effect this loan from Coffee, and was to receive his compensation therefor from Cook. Murphy has acquired by assignment the interests of Cook’s heirs.

(e) Cook continued to act until his death, June 19, 1902, as though the lands were his own. He supplied the information for drafting the bill to enforce the secret agreement. It was first drawn in his name, and then changed to Sheehan’s. He employed and paid counsel, and there is ño evidence upon this record of any claim, aside from the assignment or appointment, that this conveyance to Sheehan was intended as an absolute one, until after Mr. Cook’s death: We find that Sheehan, Murphy, and Cook understood that Sheehan was in fact acting as the trustee for Mr. Cook.

(/) Under the decree of the court below and consent of the parties, defendants Sheehan, Murphy, and the Coffee estate have received all the money that was obtained and used in the transaction.

(g) Complainants took out an execution which was returned unsatisfied December 23, 1893; an alias execution was issued December 9, 1893, and levy made upon the land in Detroit December 12, 1893; execution for Montmorency county was issued May 28, 1894, and levy made June 4, 1894.

(h) Mr. Sheehan was not a bona fide purchaser. It would be a stretch of credulity to believe that he, Cook, and Murphy understood that the appointment of Sheehan in the Canadian court to receive the title was intended as an absolute bona fide conveyance of lands worth then three times the amount which was then required to effect the redemption and revest the title in Cook. Sheehan, Cook, and Murphy were acting together to effect a common purpose. It is a fair inference that each understood what that purpose was. But whether Sheehan was fully acquainted with all the details becomes immaterial in view of the fact that he was the mere tool of Murphy, and that Murphy’s knowledge was his knowledge.

Under these facts Sheehan and Murphy have no equities, they.are all with the complainants. Sheehan lost nothing; Murphy not only lost nothing, but gained by securing the payment of certain debts due from Cook. The mortgagee’s estate has been fully reimbursed. Creditors alone have been defrauded out of their honest dues. Can a court of equity grant relief ? It certainly ought to do so, unless prevented by rules of law to which there is no exception.

The decree of the court in the case of Sheehan v. Farwell, supra, is not res judicata of the validity of the title of Sheehan as to Cook’s creditors. Whether it is res judicata as against Cook’s heirs and estate, is a question we are not called upon to decide. It is significant that defendants Sheehan and Murphy, after Cook’s death, thought it necessary to amend their bill of complaint by alleging that “on the 4th of December, 1900, Cook, for a valuabló consideration, transferred and conveyed all his interest in the lands to Sheehan.” The rights of creditors were not involved in that suit. Complainants were not made parties to it, neither was the subject referred to in the briefs of counsel.

The agreement between Cook and Farwell providing for a sale and extension of the time of payment for two years was not per se fraudulent as tó creditors. This agreement was not for the benefit of Cook alone, but for the benefit of his creditors who were entitled to the first consideration. Honesty should have directed him to inform complainants, his judgment creditors, of the transaction. Had he done this, complainants would long ago have been paid. Instead he used that agreement as a cover to conceal the situation from them, and when the property had advanced in value, as it soon and rapidly did, he then used that agreement and the arrangement with Murphy and Sheehan to prevent his creditors from obtaining their just dues. When Cook entered into this arrangement with Sheehan and Murphy to defraud his creditors, the whole transaction became void ab initio, and the original bona fides of that agreement is wholly immaterial, and furnishes no defense either to Cook or his assignees. Complainants believed, and had the right to believe, that that sale was bona fide, and that all of Cook’s interest in the lands was gone. They had no occasion to move until they ascertained to the contrary.

Complainants base their right for relief upon two propositions, the first of which is that the lien they obtained by virtue of their levies is sufficient to support a bill in aid of execution, and that they made their prima facie case in accordance with section 10203, 3 Comp. Laws. This position would be sound were it not for the provision of section 9233, 3 Comp. Laws, that such lien shall cease at the expiration of five years after the making of the levy, unless the land is sooner sold thereunder, or unless (a matter which is not referred to by counsel) the case should be held to fall within Daniel v. Palmer, 124 Mich. 335. Complainants reply to this by insisting that the fraudulent concealment of the facts by the defendants suspends the running of the statute. In the view we have taken of the second proposition, it becomes unnecessary to discuss this.

The second proposition is that if their first proposition is unsound, a decree should be entered in the name of the administrator for the benefit of the complainants and other creditors of Cook. Upon the hearing below a stipulation was filed between complainants’ solicitors and the solicitors for the administrator that if the court should hold that—

“Complainants are not entitled to priority over the other creditors of Cook, and are not entitled to claim and enforce a lien, then that the bill filed should be considered as a bill filed by and for the benefit of the administrator of Cook’s estate for the benefit of all the creditors.”

When all the parties and the subject-matter of the suit are all before a court of equity, and the proofs show that a decree can be entered doing exact justice to all, technicalities in pleadings are to be overlooked. Rynearson v. Turner, 52 Mich. 7; Ormsby v. Barr, 22 Mich. 80; Webster v. Peet, 97 Mich. 326; Van Voorhis v. Bond, 110 Mich. 3.

There is no claim of any surprise or necessity of further testimony. The point was made in the administrator’s answer that the remedy of complainants was “by and through this defendant as administrator of such estate to ascertain and recover the interest of said Cook, whatever it may be, in the property described in said bill.” The answer further avers that if Sheehan is entitled to a conveyance of the lands it is by virtue of being agent or trustee of said Calvin A. Cook.

Under the facts detailed upon this record, it would be the duty of the administrator, there being creditors of Cook’s estate, to file a bill to set aside Sheehan’s conveyance for the benefit of the creditors. The litigation growing out of this controversy has been long and expensive. It is the duty of the court to avoid further litigation and expense, if it can be done with due regard to the rights of all. It is clear that this can be done. The rights of the creditors are paramount, and the rights of Sheehan and Murphy and Cook’s heirs are subject to them. Defendant Murphy as assignee of the legatees of Cook’s will will be entitled to receive whatever surplus remains after payment of the debts and expenses of administration.

Decree reversed, and decree entered in this court in accordance with this opinion, with the costs of both courts against Sheehan, Murphy, and the heirs of Cook.

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


author: Blair, J.

text:
    RUSSELL v. RUSSELL.
    Cancellation of Instruments — Deeds—Mental Inoompetenoy —Undue Influence — Fraud—Evidence—Sufficiency.
    On a bill by a father against his son and wife to cancel a deed of the father’s farm on the ground of mental incompetency, fraud, and undue influence, evidence examined, and held, that though it could not be said that the complainant was incompetent at the time he executed the deed, the defendant intended to acquire all his father’s property by whatever means necessary to bring it about, and by f raiid and a species of, undue influence succeeded in accomplishing his purpose.
    Appeal from. Hillsdale; Chester, J.
    Submitted October 21,1907.
    (Docket No. 97.)
    Decided December 30, 1907.
    Bill by Henry L. Russell against Wilbur C. Russell and Roah L. Russell to set aside a deed on the ground of fraud and undue influence. From a decree for complainant, defendants appeal.
    Affirmed.

      B. E. Sheldon and G. A. Powell, for complainant.

      G. A. Shepard and A. L. Guernsey, for defendants.
   Blair, J.

The bill of complaint in this suit is filed by the father against the son and his wife to procure the cancellation of a deed executed by complainant to his son and his son’s wife, as tenants by entirety, on the 4th day of May, 1901. The bill alleges that at the time of the execution of this deed the vendor was, temporarily at least, mentally incompetent to execute a valid deed and that the same was obtained by fraud and undue influence exercised upon the grantor by the defendant Wilbur.

At the time of the execution of the deed, the complainant was 71 years of age, had recently lost his wife and was greatly affected thereby. Defendants, for some time prior to November, 1897, had been living at Angola, Indiana. About November 30, 1897, they returned to Hills-dale county and resided with complainant and his family during the winter. At the time of his return, defendant Wilbur had a few dollars in money, not to exceed 25, some household goods, and 40 acres of land heavily incumbered. In the spring, complainant and his son Wilbur arranged for the farming of complainant’s land, consisting of the homestead 40 acres and 87 acres additional, together with defendant’s 40 acres, for a term of years. To induce defendant to enter into this arrangement and to help him, complainant gave to the defendant a half interest in the team, stock, farming utensils, etc., and the proceeds of their joint labors were to be equally divided. It was understood that this arrangement was to continue for five years. Complainant’s wife died in April, 1900, and at the end of that season, by mutual consent, the parties sold off the tools, farming implements and other personal property to the amount of $964, which was equally divided, and defendant Wilbur afterwards sold $400 worth of the joint property and kept it all. The purpose of this sale, at least as understood by complainant, was to get rid of the old tools and personal property and replace it with new as soon as practicable and in the meantime lease the place to some one else. After the sale of the personal property, the defendant declined to continue the farming business longer with complainant, but declared his intention to leave him and go to Oklahoma. Although complainant seems to have been a man of very good health, considering his age, nevertheless, his ability to work and carry on the farm alone was considerably impaired ; he was broken in. spirits from the loss of his wife; his other son and his daughter were unable to make a home for him or take up the burden of carrying on the farm"with him; and it seemed to him imperative that he should make some arrangement with his son Wilbur to induce him to remain and carry out the original understanding, and for that purpose, on the 27th day of August, 1900, lie executed to his son Wilbur a deed of the homestead 40, containing, however, the following reservation:

“Itis understood between the said parties that said first party has the right to live with said second party for two years or during the term of his natural life. At the expiration of said two years, should said second party wish to leave said place, said lands shall revert back to said first party; or should said second party die before his wife does, then said land shall revert back to said first party.”

It was the intention of the complainant at the time of making this deed of the homestead to retain the 87 acres for the benefit of his other two children, supposing that his son Wilbur would continue to assist him in the carrying on of the farm and the paying off of the indebtedness by way of mortgage against the same.

We are satisfied from the evidence in the case that Wilbur fully understood his father’s wishes and intentions but, notwithstanding such knowledge, intended to get the entire farm for himself, and to that end, taking advantage of his father’s. circumstances, by threats of leaving him and, at times, threatening him, and continually nagging at him, induced complainant to make the deed of May 4, 1901, which is the deed sought to be set aside. That deed conveyed the homestead 40, which had previously been conveyed, as well as the 87 acres not theretofore conveyed, and defendants executed to complainant at the same time a quitclaim deed of the same premises,—

“During the term of his natural life, * * * together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining, to have and to hold the said described lands to the said party of the second part for the term of his natural life. * * * It is expressly understood by both said parties that at the death of said second party this indenture shall be null and void.”.

This deed was, substantially, without consideration, other than an oral agreement, as to the terms of which the parties disagree, and an agreement by defendant to erect a monument to cost $150. Complainant understood from his oral agreement with defendant Wilbur that Wilbur was to work the farm. He testified:

“ When I deeded him the 87 acres a year afterwards he gave me a life lease on the homestead as well as that, and he gave me that as security to protect me, and nothing was said about that he was to board me and support and care for me; I was going to stay there on the place; I considered it my property under my life lease; while I owned it he had to work it, but he didn’t work it; that was the understanding, that he was to stay with me and work it, he and I together. All I got was my life lease. No share that I was to have specified, only the life lease. I suppose the object in getting the life lease was to protect me, so I couldn’t be turned out, and I talked it. He took the 40 acres subject to the incumbrance; he assumed the indebtedness on the 87 acres the same as he did the other. It was not talked over; simply the deed made out and the life lease given in exchange; read, by itself just what it was, and that was all there was of it. There was nothing said about the life lease when I gave him the 40 the year before, for I intended to keep this 80 for the other children when I got through with it. The 87 acres was worth at that time in the neighborhood of $30 or $35 an acre. The mortgage on it was $1,250 and the interest had been kept up. The understanding was that we were to work the place together. The place was to pay the taxes. He went right on and took charge of the place; the first year he rented it out. He had what he got off the place, and the second year, and the third year, and the fourth year, all the same, and the fifth; I said nothing; there was no chance to say anything, unless we had war all the time.
‘•‘For my deed of May 4th, 1901,1 did not get any consideration at all; nothing but the life lease. And that life lease, I think I can safely say, that he had the whole benefit of it, without an exception; I have' never had anything at his hands from that life lease, except it might be a little underwear of $3.25 and the doctor bill of blood poisoning about $16.”

At the time of executing the deed of the 87 acres it was incumbered by a mortgage of $1,250 and the 40 was incumbered by a mortgage of about $1,200.

“I expected to have the use of this place; have all the crops raised on the place; Wilbur was to pay all the debts, pay the taxes, keep up the road work, but I was to work with my boy and help him through with that. I expected to stay right with my boy and work with him as though he was on shares in this matter. I expected Wilbur to pay all these debts, pay the mortgage, the indebtedness on this 87 acres of land. I did expect the proceeds of the farm, and then I was to use it in my discretion in paying up the debts; I was going to live on that 87 acres of land. I could have taken the money and put it .in my pocket if I had been a mind to; done as the rest of them did, perhaps, but I didn’t do it that way.”

Afterwards, complainant agreed with defendant Wilbur to execute a deed of the homestead 40 to one Kroh for $2,500, upon the understanding that the balance over the amount required to discharge the mortgage should be applied upon the mortgage upon the 87 acres. Defendant Wilbur testified:

“When I sold this 40 there was $1,100 equity in it. Father signed the deed with me to sell it. I took the $1,100 myself when I got it. I couldn’t get it at that time. I didn’t get it until fall. I didn’t give father a cent of it. Didn’t give him a cent for his interest in the 40. I told father that with the big debt there was on the place; and run down as it was, that I didn’t care to stay there and take chances on the sickness that we might have. And that I would rather go to town and send the children to school and reduce the debt in that way. I got the money in my own pocket. Every cent of it, yes, sir, and I invested that money for his benefit as well as ours. I got the whole title in ourselves and canceled his life lease; he said all he cared for was a home. He hasn’t anything to show for the equity he once had in the 40 acres, but he has got this 87 acres that I have went on and proved. He had that before, but not in as good shape. He didn’t gain anything so far as dollars and cents are concerned, unless it made our home for him and me both in safer shape than it was before, and that was his talk and mine together, that that was what it would be. I didn’t put the #1,100 in my pocket, I put it in a good home for him. I put it in that house and lot. The title is in our own name. He hasn’t any writings but he has an interest in it, because his home has been there. I got everything I raised off the 87 acres after I sold the 40, except what his turkeys ate and what he ate. I had the proceeds of the 127 acres for three years and after that the proceeds of the 87 acres up till the present time. Father had a bare living out of it. And what turkeys he sold. I haven’t let my father have any money since I got a deed of this place. I made provisions for him to have his money by raising these turkeys. I wasn’t to give him anything. I have not let him have a cent.”

The house and lot referred to by defendant Wilbur was in Pioneer, Ohio.

It is apparent from their testimony that neither of the parties intended to enter into such legal relations as they actually did assume by their respective deeds conveying the fee and life estate in the 127 acres. The complainant did not understand that the defendant was under no legal obligation to remain on the land or assist him in any way in carrying on the farming operations and discharging the burdens of taxation, the mortgage, etc. On the other hand, the defendant did not understand that complainant was entitled to put him off the farm and run it for his own benefit. It seems clear that the deeds do not embody the actual understanding of the parties. But even if the real agreement was as testified by defendant, and the quitclaim deed was intended merely as a security for the carrying out of his oral agreement to support complainant for life on the premises, we are of the opinion that defendant did not enter into it in good faith with the intention of carrying it out, but that it was merely one of the steps towards getting all of the complainant’s property into his own hands and subject to his own control, freed' from any legal claim upon it, which the testimony indicates was defendant’s design, from the outset. To this end, the surplus arising from the sale of the homestead 40, which should have been paid on the mortgage on the 87 acres, was invested in property in another State, whither defendant removed with complainant, in which lands complainant was given no interest whatever. It is apparent that defendant intended to make his home in Ohio and it is not unreasonable to infer that he intended to convert the remaining Michigan property into cash as soon as practicable and use it for his own purposes in Ohio. We do not think it a reasonable conclusion from the testimony in this case that complainant was deeding away all of his property for the purpose of securing to himself a bare living, or that he, of his own free will, subjected himself entirely to the defendant’s notions and abandoned his home on his own farm, the securing of which was the main object of all his arrangements with his son.

After a careful consideration of the testimony, we do not think it can be held that the complainant was incompetent to make the deed in question or the various contracts entered into by him. We are satisfied, however, that the defendant Wilbur returned to Hillsdale county with the intention of acquiring all of his father’s property by whatever means were necessary to bring such result about, and that he has, by fraud and a species of undue influence, succeeded in accomplishing his purpose. We are strengthened in this conclusion by the fact that thé trial judge, who had better opportunities than we have for determining the credibility of the witnesses, came to the same conclusion and entered a decree setting aside the deed but charging the land with a lien in favor of defendants for the sum of $503.33, “to reimburse them for the moneys expended upon said land for the benefit of the complainant and for other things which, according to the finding of the court, the complainant ought to pay the defendants.”

Decree affirmed, with costs to complainant.

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


author: Montgomery, J.

text:
    LAUNSTEIN v. LAUNSTEIN.
    1. Waters and Watercourses — Surface Waters — Rights of Dominant Estate.
    A landowner has the right to have the surface water which flows from his land follow its natural oourse, without interruption by an adjoining proprietor across whose land the natural drainage lies; the adjoining proprietor’s being to that extent the servient estate.
    2. Same — Prescriptive Right.
    An easement may be acquired by prescription by which the water collected upon the lands of the upper proprietor may be allowed to overflow the lands of an adjacent proprietor.
    3. Same — Sag Holes — Right to Pill.
    The owner of the dominant estate may, in the interests of good husbandry, and in the good-faith improvement and tillage of his farm, fill up sag holes, so that no water will accumulate or stay in them, even if the water arising from rainfall or • melting snows by reason thereof finds its way upon the servient estate and the flow thereon is incidentally increased.
    4. Same — Artificial Drains — Right to Use.
    The owner of the dominant estate cannot, by artificial drains or ditches, collect the waters of stagnant pools, sag holes, basins, or ponds upon his premises, and cast them in a body upon the proprietor below, to his injury.
    5. Same — Highways—Culverts—Enlargement—Injury to Servient Estate.
    The enlargement of a culvert under the highway is no injury to a landowner the situation of whose land is such that in a time of high water that which does not flow through the culvert will force its way over the highway onto his land.
    Appeal from Shiawassee; Smith, J.
    Submitted October 25, 1907.
    (Docket No. 140.)
    Decided December 30, 1907.
    Bill by Henry Laúnstein against Oliver Launstein and David Winkler to enjoin the maintenance of a sluice in a highway, and to require the filling of certain drains. From a decree dismissing the bill, complainant appeals.
    Modified and affirmed.

      Watson & Chapman, for complainant.

      Walsh & Pardee (John T. McCurdy, of counsel), for defendants.
   Montgomery, J.

This bill is filed to enjoin the defendants from maintaining a sluiceway in the highway adjacent to complainant’s premises, and for a mandatory injunction requiring the defendant Oliver Launstein to fill up the drains upon his farm which carry water from off said Oliver Launstein’s farm down through said sluice-way in question and upon the land of complainant.

Complainant and defendant Launstein own each 80 acres of land, the complainant on the west, and the defendant on the east side of a north and south highway in the township of Owosso. At a point some 30 rods south of the northerly line of the two proprietors there is an open ditch extending westerly across lands of complainant, emptying into a public drain known as Wilkinson’s drain, which in turn empties into Maple river.

The bill alleges that for the past 8 years the defendant Launstein has been draining his farm and turning the waters down to and upon the highway in question and has caused a larger amount of water to flow from his farm down upon the highway than would naturally flow there and drain from his land. That in May, 1904, the defendants came to the highway and dug a drain across said highway and placed in the drain across the roadbed a large wooden culvert which was intended to and did carry the water from the highway and from said Oliver Launstein’s farm over and upon the improved land of complainant. That said sluice and drain was about 40 rods south of where the large open drain above referred to was located.

The answer admits that the defendants constructed the culvert in question, but avers that this was built to replace a culvert which had been in place upon this highway for many years. Defendants further alleged that they were acting under the authority of the highway commissioner in repairing said culvert, and aver that it was placed there in good faith and was done for the sole purpose of improving the condition of the highway. Defendant Launstein avers that the natural drainage from his land of the surface water is to the northwest, and that the water naturally flows across said highway at about the point where this culvert in question is located and across the lands of the complainant to the northwest until it reaches the Wilkinson drain, so-called. He denies that he is draining his land and the sag holes on his farm other than they have been drained for the past 20 years and upwards, and denies that the drainage is any other than is practiced in good husbandry. That complainant has somewhat impeded the flow of water in its natural course by an embankment on the easterly side of his land. Defendant also shows that there has been for. many years a drain or ditch running westerly from the culvert in question on complainant’s land which serves a double purpose of draining complainant’s land and carrying away the water which in its natural course reached this point from defendant’s land, and the defendant asks relief^and that complainant be required to remove the embankment and be peremptorily enjoined from refilling the ditch and be required to maintain the ditch for the purpose of drainage aforesaid.

The legal questions involved in the case are not difficult. The case of Gregory v. Bush, 64 Mich. 37, which has been frequently cited and followed by this court, furnishes the rule of law for the case. The defendant undoubtedly has the right to have the surface water which flows from his farm follow its natural course, and if that takes it across the lands of complainant then complainant has no right to interrupt this flow of water in this natural course or direction. To that extent the complainant’s is the servient estate.

It was held in Gregory v. Bush, supra, following Boyd v. Conklin, 54 Mich. 583, that án easement may be acquired by prescription by which the water collected upon the lands of the upper proprietor may be allowed to overflow the lands of an adjacent proprietor; and that the owner of the dominant estate may in the interest of good husbandry, and in the good-faith improvement and tillage of his farm, fill up the sag holes, so that no water will accumulate or stay in them, even if the water arising from rainfall or melting snows should thereby, in natural processes, find its way upon the servient estate and incidentally increase the flow thereon. It was also held that the -owner of the dominant estate cannot by artificial drains or ditches collect the waters of stagnant pools, sag holes, basins or ponds upon his premises, and cast them in a body upon the proprietor below, to his injury.

■ These rules of law furnish a sufficient guidance for the determination of this case, and the question gets down to ■one of fact. The case has on this branch given us no little trouble, and it has required a most careful examination of the testimony, and the conclusions which we have reached are as follows: First. That the surface water which flows from the land now owned by Oliver Launstein has always found its outlet at about the point where the culvert is constructed over and thence across the highway into the lands of complainant and over his land in the direction of the present location of the Wilkinson drain. Second. That for many years the flow of water has been accelerated and increased by a shallow ditch dug at the bottom of a natural ravine extending across the lands of defendant Launstein and by other ditches leading into the same and of less importance. That this flow of water has been conveyed in this manner across and off these premises for more than the statutory period is undoubted.

The only question that could arise is whether by increasing the size of this ditch the flow has been increased beyond that fixed by the prescriptive right. The evidence shows that the ditch first consisted of two ploughed furrows and perhaps a third in the center, its construction resulting in throwing up loose dirt on either side of the ditch. It also shows that in late years defendant Launstein has scraped this loose dirt farther back from the bottom of the ditch for the purpose of enabling him to drive mowing machines and other farm implements across the ditch. "We are not convinced that this has increased the capacity of the ditch for carrying water. The ditch has not been lowered and if spread out over more land it would seem that more water would percolate into the soil than if it were kept in a narrow space. Moreover, the testimony fairly indicates that the bottom of the ditch is not now at as low a grade as when first constructed.

The question which has given us more doubt is whether the drainage from the sag hole has been increased. But upon this question we think the weight of the testimony is with the defendant, that from the time the land was improved the custom has been to turn an ordinary furrow from these sag holes in the ground and from time to time to fill in the sag holes by scraping dirt into them freely. Except in filling in the sag holes which the defendant had, under the cases cited, a perfect right to do, there has been no increased facility of flow-age from the sag holes or ditch to the ravine in question. We are satisfied therefore that upon the facts the complainant has failed to make a case.

The evidence indicates that the complainant’s relief is open to himself; that by re-opening and keeping open this ditch in question, or if not by this means, by carrying a ditch on the westerly side of the highway north to the open ditch referred to, he can take care of the water which in right comes from defendant’s land to his own.

As to the culvert, the evidence is that this culvert is substantially the size — possibly a little larger — than the one which it was built to replace. But the fact of its being larger does not injuriously affect the complainant for the reason that in high water if the water coming from defendant’s premises does not find its way through this culvert it will force its way across the highway and upon the lands of complainant. See Chapel v. Smith, 80 Mich. 111.

So far as the relief prayed for by defendant against complainant is concerned, we think that the embankment which does not cross the open ditch extending easterly from the sluice in question cannot be said to work injury to defendant by damming up the water. It is lower than the highway opposite. If any injury results to defendant it must be from the stoppage of this drain. We think complainant should be required by the decree to keep the drain in question open to its original depth. The damages proven by defendant are insignificant — too slight indeed to be considered.

The decree will be for the defendant in form indicated in this opinion, and defendant will recover costs of both courts.

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


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      In re E. BEMENT’S SONS. APPEAL OF STATE BANK OF MICHIGAN.
    1. Corporations —Insolvency —Receivers —Dividends —Claims —Treatment in Solido.
    Where the claim of a creditor of an insolvent corporation is represented by several notes, each of which is secured by a schedule of assigned accounts upon which collections have been made in varying amounts, the entire claim should be . treated by the receiver as a single demand and dividends declared thereon, and applied in reduction of the demand until the dividends, plus the sum received from collateral, extinguish the debt, principal and interest.
    3. Same —Notes — Collateral Security — Assignment — Construction.
    Where a corporation gave a number of promissory notes, each secured by an assignment of accounts, scheduled, aggregating in face value a sum somewhat in excess of the amount of the note, the assignment stating that its purpose was, first, to pay the note, and the balance to apply on any other valid claim, remainder to be returned, there is nothing in the assignment to support the claim that the creditor agreed to forego any interest in the general estate of the debtor.
    3. Same — Interest—Collateral.
    Though for the purpose of calculating dividends upon claims against the estate of an insolvent, interest stops at the date fixed for proving claims, a creditor who makes collections from collateral security is entitled to apply the moneys so received in payment of interest until the collections, plus the dividends, pay his entire claim, principal and interest.
    Appeal from Ingham; Wiest, J.
    Submitted October 24, 1907.
    (Docket Nos. 121, 122.)
    Decided December 30, 1907.
    Petition by the board of directors of E. Bement’s Sons for the voluntary dissolution of said corporation: On petition of the Detroit Trust Company, receiver, a refer-©nee to a commissioner was made. Prom an order overruling exceptions • to the report of the commissioner, the State Bank of Michigan and the Old National Bank of Grand Rapids appeal.
    Reversed.

      Bundy, Travis & Merrick, for appellants.

      Edward Cahill, for appellee.
    The proceeding is one to wind up the affairs of an insolvent corporation, voluntarily dissolved, in the course of which the Detroit Trust Company was appointed receiver. By a stipulation of counsel, the appeals of the State Bank of Michigan and of the Old National Bank, creditors of said corporation, from an order overruling exceptions to the report of a commissioner, were consolidated and heard as one appeal, the record containing only the case of the first-named appellant. A reference to a commissioner was made, upon the petition of the receiver, to ascertain and report the basis for and the amounts upon which a dividend should be declared. The commissioner reported October 24, 1904, as the date for proving claims and the date to which interest, as against the general assets in the hands of the receiver, should be computed. On October 24, 1904, the State Bank of Michigan was owner and holder of seven promissory notes made by the insolvent, each for the sum of $5,000, payable on demand with interest at six per cent, per annum. The total debt with interest to the date specified was $35,034.98. Each note was secured by an assignment of accounts, scheduled, aggregating in face value, approximately, $6,000. The assignments of collateral are worded as follows:
    “ The above schedule represents certain accounts which we, the undersigned, have this day assigned to the State Bank of Michigan. * * * These accounts are assigned * * * first, to pay a demand note of $5,000, dated * * * and the balance, after paying said note, to apply to the liquidation of any other valid claim of the State Bank of Michigan against us; the remainder, if any, to be returned.”

      Between October 24, 1904, and the date of the commissioner’s report, various of these assigned accounts had been collected. The total of the sums received from collateral as per the respective schedules was, $4,387.29, $3,502.63, $4,333.50, $1,464.53, $2,658.97, $3,548.13, $2,907.84, in all $22,802.89. The commissioner, treating each note as a distinct claim or demand, reported the unpaid balance thereof, after applying the collections. Assuming the notes to be numbered from one to seven, he found there remained due upon note number one, after applying the proceeds of collateral, $621.04, and determined that dividends should be allowed and paid, upon note number one, upon the sum of $5,008.33 (the amount due October 24,1904) toan amount not exceeding $621.04; the determination as to each of the other notes is a variation only of the one relating to note number one. By exceptions to the report, appellant asserted that it was error (1) to deny it the right to recover interest, after October 24, 1904, from dividends and collateral combined; (2) that it should not be required to treat each note as a separate demand and basis for dividends, to first apply collections made from the collateral in reduction of the principal and to receive dividends restricted to the remainder of the principal of each note. The exceptions were overruled’and an order entered confirming the report. It was the opinion of the circuit court that:
    “ The assignments of collateral for the payment of specific notes must be given force and effect before going to the so-called general assignment. Effect must be given to the agreement of the parties and this can only be done by applying the collateral in the order agreed upon by the parties, and that is by recourse to the special assignments before calling up the general assignment.”
   Ostrander, J.

(after stating the facts). The disagreement of counsel as to the application here of the rule that the creditor may have dividends only upon the amount of the claim as proved, but may, out of any separate estate, held as security, realize any balance of principal unpaid by dividends and, also, interest upon such principal, does not require, in view of our determination of the principal question presented, any comment beyond this: The commissioner has not, in his computation, in which he applies the total sum received from collateral to the amount of the demand as proved, recognized or given any force to the rule. In other respects,'the commissioner recognized and applied the rules followed in Third Nat. Bank of Detroit v. Haug, 82 Mich. 607 (11 L. R. A. 327); Chemical Nat. Bank v. Armstrong, 59 Fed. 372, 8 C. C. A. 155 (28 L. R. A. 231); People v. E. Remington & Sons, 121 N. Y. 334 (8 L. R. A. 458); In re Bates, 118 Ill. 524; Graeffs Appeal, 79 Pa. 146; Merrill v. National Bank of Jacksonville, 173 U. S. 131, and many other like cases, if we are to consider, as upon the part of the receiver it is insisted we should do, each of the seven notes as a single demand; as if there were seven creditors, each owning a single note, instead of a single creditor owning seven notes. He did not properly apply those rules if appellant is entitled, as it contends that it is, to have dividends upon its entire demand as proved applied in reduction of the demand until the dividends, plus the sum received from collateral, extinguishes the debt, principal and interest. The argument made for the receiver, and the opinion rendered by the court, each proceeds upon the theory that only by treating each note as evidence of a separate debt can the arrangement concerning the collateral be given the effect intended by the parties and imported by the instrument of assignment; that particular collateral is, by the agreement, devoted to the security of a particular note, and when collected must be applied in payment thereof, and when paid, either by collateral or by dividends, apportioned to the particular note, the debt evidenced by the note is extinguished.

In thus stating the position of the receiver, we assume that if appellant had no security for its debt, or if the collateral had been assigned to secure indebtedness generally, it would be conceded, under the rule of the cases herein cited, that the commissioner should so amend his report as to merely provide for a dividend upon the demand as proven.

The insolvent, when its assets were impounded, owed the appellant upwards of $35,000, evidenced by seven notes, which might have been theretofore, regardless of the fact that security had been given, enforced against the maker as a single demand. Nothing appears to be better settled by the decisions than that the effect, upon the creditor, of the taking over by the receiver of the general assets of the debtor is to substitute for the right of action, in personam, theretofore existing, a right to a proportional share of the impounded assets — a right to receive such a part thereof as its total, proved, demand bears to the total of all demands, unaffected by the fact that it holds security for a part or for all of its debt. The application of the rulé contended for by appellant is that dividends should be computed and paid upon $35,034.98; as applied by the commissioner, each $5,000 pote is made the basis for computation and payment. In practical effect, there would be no difference if the commissioner had stopped here; if he had not, as to each note, applied the collateral collected and limited the payment of the dividend to the amount of the principal remaining due after such application. It is clear that this method remits the creditor to the collateral and denies to him a share in the general assets proportioned to his entire demand. Counsel for the receiver says, in effect, that this is what the parties agreed to. We are unable to find in the form of the assignments of collateral, or in the conduct of the parties, evidence to support the idea that the creditor ever released, or agreed to forego or to waive, any interest in the general estate of the debtor. No authorities are produced, and we think no good reasons have been advanced, to support the application of the rule which has been made. Nor would it make any difference if particular evidences of indebtedness, constituting a part of the total demand as proved, were otherwise, and for other purposes, extinguished. Graeff’s Appeal, supra. Before a receiver was appointed, all of the general assets of the debtor and all of the assigned collateral was a fund to be resorted to for payment of the entire demand. There has been no change except this: The debtor may now receive out. of the general assets no more than his proportional share. Until the debt is paid, in full, principal and interest, the creditor is entitled to such dividends as may be declared upon the total of the debt as proved. It is entirely immaterial to the receiver in what manner proceeds of collateral are applied, to the point when the sum of the dividends and Of collateral collected has extinguished the entire debt, principal and interest. It follows that the court below was in error in overruling the first and second exceptions to the report. An order may be entered in this court in conformity with this opinion in favor of each party appealing and remanding the record for further proceedings. Appellánts will recover costs of this appeal.

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


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      In re E. BEMENT’S SONS. APPEAL OF MICHIGAN SAVINGS BANK.
    Corporations — Insolvency—Receivers—Dividends—Interest— Collateral Security.
    This case, involving the right of a creditor of an insolvent corporation holding collateral security to receive interest on his claim after the date fixed for proving claims, follows the Appeal of State Bank of Michigan, ante, 530, presenting similar facts.
    Appeal from Ingham; Wiest, J.
    Submitted October 24, 1907.
    (Docket No. 14.)
    Decided December 30, 1907.
    Petition by the board of directors of E. Bement’s Sons for the voluntary dissolution of said corporation: On petition of the Detroit Trust Company, receiver, a reference to a commissioner was made. From an order overruling exceptions to the report of the commissioner, the Michigan Savings Bank appeals.
    Reversed.
    Wilkinson, Post & Oxtoby, for appellant.

      Edward Cahill, for appellee.
   Ostrander, J.

We agree with counsel for the receiver that the exceptions 8th and 9th, to the commissioner’s report, relied upon in this court, are to some extent argumentative and in that respect are objectionable. The 9th exception is, however, sufficiently specific to present the theory relied upon by appellant and its application to the case. The supplemental report of the commissioner apparently determines the right of appellant to interest in accordance with the rule stated in the matter of the Appeal of State Bank of Michigan in the same proceeding. All other questions presented are considered in the case referred to and are answered in favor of the appellant. An order may be entered in conformity with the opinion in that case. Appellant will recover costs of the appeal.

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


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    PERRY v. MICHIGAN ALKALI CO.
    Release — Action—Personal Injury — Effect.
    Where, in an action for personal injury, it appears that defendant paid plaintiff’s hospital expenses and his wages while off duty as a result of the injury, for which plaintiff signed a receipt acknowledging such payments to be in full of all claims and demands on account of the injury, and that on being informed after suit was brought that he could not sue defendant and remain in its employ, plaintiff deliberately stated that he did not wish to sue the company, and tried to discontinue the suit, but could not, on account of having placed the management of the suit in the hands of attorneys, who were to have a portion of the judgment, and no fraud or overreaching on the part of defendant appears, a verdict is properly directed for defendant.
    Error to Wayne; Rohnert, J.
    Submitted October 25, 1907.
    (Docket No. 137.)
    Decided December 30, 1907.
    Case by Harry B. Perry against the Michigan Alkali Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      John M. Feier, Proctor K. Owens, and Lehman & Biggs, for appellant.

      Gray & Gray, for appellee.
    Defendant operates 15 coke ovens which are situated upon an iron platform about 18 feet above the ground, are joined together in a row, and are 7 feet high. The platform upon which the ovens rest extends from 3 to 4 feet on the east and upon the west forms a large wharf to receive the coke as it is pushed out of the ovens. The ovens are fed with coal from the top. There are doors upon the east and west sides of the ovens, several feet above the platform. In making the coke these doors are sealed with clay. For the purpose of reaching them, a ladder constructed like the ordinary stepladder, 20 inches wide and 5 feet high, with 6 steps, is provided. This ladder has hooks upon the top which for safety are hooked over an iron rod near the top of the ovens. It is moved from oven to oven as required. It stands at an angle of about 45 degrees, the foot of the ladder being 2-J- feet from the edge of the platform. A short distance east of the ovens is another platform with iron rails or tracks upon it. Upon this track is situated a machine, called the pusher, which is operated with electricity. The pusher is about 20 by 26 feet; it is provided with what is called an arm, used to push the coke out of the oven. For this purpose it is moved along the track from oven to oven, the doors are opened and the ram enters the . east door and pushes the coke out at the west door. This pusher is from 3 to 3£ feet above the platform. Upon its side next to the ovens is a narrow board platform similar to the running board of an open street car. Above this narrow platform is a rod called an angle iron. Some parts of the pusher extend over the platform.
    The time of filling each oven is noted in a book kept for that purpose. When the ovens are filled this book is placed in the push car to indicate the time when each oven is to be opened and the coke pushed out. Two ways are provided for reaching the pusher, one by stairs from the ground, and the other by stepping from the platform in front of the ovens onto the platform upon the side of the pusher. The foreman of the coke ovens, a witness for plaintiff, described these methods, as did also other witnesses. He testified:
    “There was no rail to this platform upon which the ladder stood. If an employe was on the platform at the oven, and he wanted to get over to the pusher, he would get there as follows: There was a 2x10 plank to get upon down on the bottom of the channel iron just above him, and he would climb up by way of that onto the pusher. Nearly all the employes, except Perry, I guess, so far as I know, got up .that way. He was the only man that used the ladder to get onto the pusher. Sometimes he would go up the way we did. * * *
    “ There was a platform on the push car, a sort of running board. They would get onto the platform and then step up, it was a high step up, you cpuld put your knee on it and step up onto the push car from the platform. It made it a rather high step. The board was about 6 feet long and 10 inches wide. That ran along the platform near the coke ovens, and it would be carried along with the push car. The same board is there yet. * * * The purpose of that board was to assist in getting up on the push car from the platform. If one desired to get from the coke oven to the push car that board was to assist in getting upon it. * * *
    “ It was about 3 feet and a few inches above the level of the iron platform and about 10 inches from the top of the pusher. A man would have to step 3 feet and 10 inches or more to get up there without a ladder. He could put his hand up there and pull himself up. They usually put their knee upon that board instead of their foot, and that is the customary way they got up there when they would go up in a hurry. They could go up the ladder on the other side by going down and going clear around, but they generally went this short way. It was the only way they could get there unless they went down and went to the other side, and they generally went this short way. That was the custom of every one known to myself.”

      Plaintiff was a tar chaser, a work which it is unnecessary to describe. He also did other work when called upon. Plaintiff had gone into the push car and eaten his lunch; had left the push car; had come down upon the platform and there met the foreman of the ovens who was about to take the time book and put it in its usual place in the car. Plaintiff had forgotten his mittens which he had left in the car, and was about to return to get them when he met the foreman with the time book. Plaintiff told him that he would take the book into the car. The foreman gave it to him and turned away. Immediately thereafter plaintiff fell from the oven platform into the space below and was seriously injured. Instead of climbing to the push car in one of the two ways provided, he went upon the ladder, turned his back to the ladder, and, in attempting to step upon the pusher platform and reach the angle iron with his hands, he fell and was injured. The negligence relied upon is a defective ladder. The steps or rungs of the ladder.were laid upon cleats fastened to the inside of the uprights and nails driven from the outside into the rungs.- After the accident it was discovered that one side of the second rung had gone down. It is claimed that the ladder was in a defective condition, and that a proper inspection would have discovered it. Plaintiff testified that he stepped upon the second rung with his left foot, and then turned to step upon the pusher, and while so doing fell. When the plaintiff had rested his case, the court directed a verdict for the defendant, chiefly upon the ground that he was using the ladder for a purpose for which it was not intended, and that in doing so he assumed the risk.
   Grant, J.

(after stating the facts). 1. The instruction was correct. The defendant had provided two safe ways by which to reach the pusher. Plaintiff chose a third way which was fraught with danger if he slipped, or the ladder, for any reason, gave way. Had he been using the ladder for the purpose for which it was intended and a rung had broken when ascending the ladder, no injury, in all probability, would have resulted, as plaintiff would naturally have had at least one of his hands upon a rung or side of the ladder. It is evident that a jump from a rung of the ladder to the platform would subject it to a greater strain. To stand upon this ladder with one’s back to it and attempt to jump onto the pusher and reach a rod above the platform was per se dangerous, and such dangerous practice by the plaintiff, although frequent, did not impose upon the defendant the duty to see that the ladder was strong enough and in good repair enough to justify its use for the purpose to which the plaintiff put it. Kopf v. Monroe Stone Co., 133 Mich. 286. Plaintiff knew the dangers and assumed the risk.

2. The instruction was correct for another reason. Plaintiff had settled any claim he had against the company, and had given a receipt therefor. Defendant paid all plaintiff’s hospital charges, $158, and his full pay while off duty, $163.62. He signed a receipt containing these two items, acknowledging them to be “in full payment of all claims and demands of whatsoever nature on account of injuries received by me at coke oven plant. January 27, 1904.” He was off duty from January 27th to April 30th, and the receipt was dated June 3d. As soon as he recovered so as to work he was employed by the company in light work at $1.35 a day, his former pay having been $1.75. While he was in the employ of the company this suit was commenced. When the summons was served upon the defendant he was notified that he could not sue the company and remain in its employ; he must discontinue the suit or leave the company’s employ. He took time to deliberate; went home to see his wife, and then made a statement saying that he signed the settlement of June 3d with full and perfect knowledge as to its legal effect and force; that he ratified and confirmed it, and that the suit was commenced without his knowledge or consent, and he agreed to forthwith notify the attorneys of record to discontinue it. He did so notify them, but previous thereto two attorneys had obtained a contract from him by which he placed the matter absolutely in the hands of his attorneys, and they were to receive 50 per cent, of any judgment they should obtain.

Plaintiff testified upon the trial that he had never authorized suit to be brought; that he did not want to sue the company, and that he was willing to work for them:

“Q. Did Mr. Ford say that they could not have a man in their employ suing the company, and if you were .suing the company that you would have to withdraw the suit or leave the employ of the company ?
“A. Yes, he did tell me that.
<lQ. And you understood that you could do either one you wanted to ?
“A. Didn’t I go and try to withdraw it ?
“Q. Then you wanted to withdraw it ?
“A. Yes, but what could I do ?
“Q. You mean you couldn’t?
“A. Nobody would let me.”

I find no evidence showing that there was any fraud on the part of the company in making this settlement; that plaintiff fully understood what he was doing and deliberately made it. While the court did not direct a verdict upon this, ground, but partly upon the ground that it was the duty of the plaintiff to tender back the money paid, which he had not done, still, if for any reason the court should have directed a verdict, the judgment will not be reversed.

The judgment is affirmed.

Hooker, J., concurred with Grant, J.

Montgomery, J. I concur in the result upon the second ground stated by Mr. Justice Grant.

Blair, and Ostrander, JJ., concurred with Montgomery, J.