text:
    INTERNATIONAL HARVESTER CO. OF AMERICA v. EATON CIRCUIT JUDGE.
    1. Contracts — Public Policy — Restraint op Trade — Trusts and Monopolies.
    Under the common law it is no defense to an "action upon a contract which is in itself legal and valid, that the plaintiff is a trust, monopoly, or combination in restraint of trade.
    2. Same — Statutes—Actions by Trust or Monopoly.
    The defense that a foreign corporation is an illegal combination or trust, within the meaning of Act No. 255, Pub. Acts 1899, or Act No. 329, Pub. Acts 1905, is not available to a defendant in an action of assumpsit for money had and received for the benefit of the plaintiff, in a transaction untainted by illegality.
    3. Corporations — Monopoly—Defenses to Actions — De Jure Corporation.
    Where the articles of association of a corporation state a purpose for which the statute authorizes a corporation to be formed, then, if other requirements of the law are complied with, it is not only a corporation defacto but is a corporation de jure, whose organization cannot be attacked or dissolved except for misuser; and then, only by a direct proceeding by the State to test its right.
    Mandamus by the International Harvester Company of America to compel Clement Smith, circuit judge of Eaton county, to vacate an order requiring relator to produce certain books and papers.
    Submitted June 24, 1910.
    (Calendar No. 24,024.)
    Writ granted September 28, 1910.

      Harry H. Partlow and Thomas, Cummins & Nichols (James C. McMath, of counsel), for relator.

      John L. Wright (Elmer N. Peters, of counsel), for respondent.
   Stone, J.

Relator is a corporation organized and existing under the laws of Wisconsin. It was first incorporated in 1881 under the name of the Parker-Dennett Harvesting Machine Company, Limited, with a capital stock of $100,000, for the purpose of manufacturing and selling harvesting and other farm machinery. In March, 1882, its name was changed to the Dennett Harvesting Machine Company, Limited. In February, 1883, its capital was increased to #250,000. In December, 1883, it was again increased to $500,000. In November, 1884, the name of the company was changed to the Milwaukee Harvester Company. In April, 1889, the capital stock was increased to $750,000, and in January, 1893, was again increased to $1,000,000, where it has remained ever since. On September 5, 1902, the name of the company was changed to the International Harvester Company of America, which name it now bears. On April 3, 1903, the relator was regularly admitted by the secretary of State of Michigan to carry on its business in this State, in accordance with the provisions of Act No. 206 of the Public Acts of 1901, and, in pursuance of the authority granted it as aforesaid, has conducted its business of selling agricultural implements in this State since that time, and has invested large sums of money in real estate, and warehouses necessary and incident to its business aforesaid. Since its admission to do business in this State, it claims that it has complied with all the requirements of our foreign corporation laws by regularly filing its annual reports; and this claim is not denied by respondent.

In 1907, in the regular course of its business in this State, the relator appointed Fayette De Puy and John Holmes (a copartnership doing business as De Puy & Holmes) its agents for the sale of its products at Grand Ledge and vicinity. During the continuance of this agency — that is, during the spring and summer months of 1907 — the said De Puy & Holmes became indebted to the relator in the claimed sum of about $1,500, a large portion of which was for moneys collected by said De Puy Sc Holmes as agents of relator, and the remainder was for the purchase price of goods sold and delivered to said De Puy & Holmes by relator during the continuance of the agency aforesaid. Most of this indebtedness remaining unpaid, the relator, on November 12, 1909, commenced an action of assumpsit in the circuit court for the county of Eaton, against said De Puy & Holmes to recover the amount owing to it, as above stated. The declaration was on the common counts. Defendant Holmes made no defense, and his default was regularly entered; but defendant De Puy filed a plea of the general issue with notice of two special defenses, viz.:

_ (1) That the plaintiff, at the time the indebtedness mentioned was created, was a “trust,” as defined by the statutes of this State, and hence any contract made by defendant with the plaintiff was null and void, and against public policy. That the said plaintiff is a corporation organized and existing under the laws of the State of Wisconsin. That the purpose of said corporation is, to wit, the control of the manufacturing of all harvest machinery and other agricultural implements, to carry out restrictions in trade of the said agricultural implements, to limit or reduce the price of said implements, to prevent competition in the manufacture of said implements, to fix the price to the consumer, thereby controlling and establishing the price to the public at large by entering into an agreement whereby it has bound itself with the several harvester companies not to sell any of their or its manufactured products below a certain standard, by them and the plaintiff fixed. That the plaintiff is a pool and combine, whereby the interest of all, or nearly all, of the great harvester companies of the world are united, and the interest of all such companies is fixed by the said plaintiff. And that the plaintiff thereby fixes and controls the price of their products.
(2) That the plaintiff had never filed a copy of its articles of incorporation with the secretary of State of the State of Michigan, or paid the lawful fees by it to be paid, before doing business in this State, and hence any contract made by defendant with the plaintiff was null and void, and could not be enforced.

We note in passing that the second allegation of the notice is in direct conflict with the relator’s petition for mandamus (Petition, par. 2), which paragraph of petition is admitted to bes true, in the answer of respondent.

After issue was thus joined, defendant De Puy filed a petition under Circuit Court Rules 50-57 (124 Mich, xxxviii [87 Ñ. W. vi]), first reciting in substance the defenses above mentioned, and then alleging that it was necessary, to enable him to prepare for trial, that the books, records, documents, and papers of the plaintiff (relator) showing the names of its stockholders, the amount of stock held by each, the names of its officers, the total amount of property in Michigan from 1903 to 1909, the total amount of property owned by it from 1903 to 1909, the total amount of business done by it from 1903 to 1909, the total amount of business done by it in Michigan from 1903 to 1909, also the number and location of factories, also the records of its stockholders’ and directors’ meetings from 1903 to 1909, or sworn copies thereof, be produced, and deposited with the clerk of said court, and that all proceedings in the suit of the plaintiff be stayed until such books, records, etc., were produced as prayed for. The petition contained an averment, upon information and belief (in addition to the special defenses set up under the plea of the general issue), that plaintiff (relator) had increased from time to time the proportion of its capital stock represented by property and business in Michigan, and had not, within 30 days after such increase, filed a statement showing such increase with the secretary of State. We note again the fact that in its petition for mandamus the relator avers that it has in all respects complied with the laws of this State, governing the business of foreign corporations in the State. The answer of respondent does not deny the averment. Berube v. Wheeler, 128 Mich. 32 (87 N. W. 50); Barlow v. Riker, 138 Mich. 607 (101 N. W. 820). After hearing the said petition of defendant De Puy, the respondent granted the order prayed for, whereupon the relator formally moved the respondent to vacate such order, which motion of relator was denied. Relator filed its petition in this court for a writ of mandamus to compel the respondent to vacate and set aside the order above mentioned; an order to show cause was issued and served; and respondent has made a return substantially admitting all of the material averments of relator’s petition.

At the outset it may be well for us to distinguish this case from the several cases in this court cited by respondent’s counsel, to the proposition that contracts of an unlicensed foreign corporation made in this State are illegal, and that such corporations will be denied the aid of our courts in enforcing such contracts. Most of the cases cited are insurance cases, in which the contracts were expressly prohibited, and some of them are cases of foreign mercantile corporations, in which the statute expressly declared that such contracts should be void. Such corporations have sometimes been spoken of as having no legal existence here, and as having no standing in our courts. Among such cases are the following: Richardson v. Buhl, 77 Mich. 632 (43 N. W. 1102, 6 L. R. A. 457); Seamans v. Temple Co., 105 Mich. 400 (63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457); People’s Mut. Benefit Society v. Lester, 105 Mich. 716 (63 N. W. 977); Swing v. Weston Lumber Co., 140 Mich. 344 (103 N. W. 816); Swing v. Cameron, 145 Mich. 175 (108 N. W. 506, 9 L. R. A. [N. S.] 417).

It was, however, held in People v. Hawkins, 106 Mich. 479 (64 N. W. 736), that an agent of a foreign corporation could not defend a charge of embezzlement, upon the ground thát the corporation was prohibited from doing business in this State, by reason of noncompliance with the statutory conditions.

We are here dealing with a corporation that is alleged to be a “trust” or monopoly; one, however, which, as appears by its articles of incorporation, was lawfully organized for a legitimate purpose and business, under the laws of Wisconsin. It has complied with the laws of this State regulating foreign corporations. It comes into a court of this State, and sues upon an independent eollateral contract, made with defendant, an agent, in this State — a contract in no way tainted with the illegality of the alleged trust or combination, and one not prohibited by our statute. Can the defense here sought to be imposed be maintained ? Assuming, as contended, that the alleged combination was illegal if tested by the principles of the common law, still it would not follow that the defendant could refuse to pay for goods bought by him under special contract with plaintiff. The illegality of such combination and “trust” would not prevent the plaintiff corporation from selling goods that it obtained even from its constituent companies or either of them. It could pass title by sale to any one desiring to buy, and the buyer could not justify a refusal to pay for what he bought and received by proving that the seller had previously, in the prosecution of its business, entered into an illegal combination with others in reference generally to the sale of articles or products. Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (22 Sup. Ct. 431). This was an action brought upon contract between the parties, which was itself legal and entirely collateral to any illegal combination. It was sought there by special defense to defeat the action by showing that the plaintiff was a “trust” or combination, and the Supreme Court of the United States held that the defense could not be maintained. The court cites Strait v. National Harrow Co., 51 Fed. 819, and Kiff v. Youmans, 86 N. Y. 329 (40 Am. Rep. 543). Justice Harlan said:

“In National Distilling Co. v. Importing Co., 86 Wis. 352 (56 N. W. 864, 39 Am. St. Rep. 902), which was an action to recover the price of goods sold and delivered, one of the defenses was that the plaintiff was a member of an illegal ‘ trust5 or combination to interfere with the freedom of trade and commerce. The supreme court of Wisconsin said:
“ ‘The first defense does not deny any allegation of the complaint, but the substance of it is that the sale and delivery of the goods in question to the defendant was void as against public policy, because the vendor was at the time a member of an unlawful trust or combination, formed to unlawfully interfere with the freedom of trade and commerce, and in restraint thereof, and to accomplish the ends therein set forth. * * * Conceding, for the purposes of this case, that the trust or combination in question may be illegal, and its members may be restrained from carrying out the purposes for which it was created by a court of equity in a suit on behalf of the public, or may be subject to indictment and punishment, there is, nevertheless, no allegation showing or tending to show that the contract of sale between the plaintiff and defendant was tainted with any illegality, or was contrary to public policy. The argument, if any the case admits of, is that, as the plaintiff was a member of the so-called “ trust” or “combination,” the defendant might voluntarily purchase the goods in question of it at an agreed price, and convert them to its own use, and be justified in a court of justice in its refusal to pay the plaintiff for them, because of the connection of the vendor with such trust or combination. The plaintiff’s cause of action is in no legal sense dependent upon or affected by the alleged illegality of the trust or combination, because the illegality, if any, is entirely collateral to the transaction in question, and the court is not called upon in this action to enforce any contract tainted with illegality, or contrary to public policy. The mere fact that the plaintiff is a member of a trust or combination, created with the intent and purposes set forth in the answer, will not disable or prevent it in law from selling goods within or affected by the provisions of such trust or combination, and recovering their price or value. It does not appear that it had stipulated to refrain from such transactions. A contrary doctrine would lead to most startling and dangerous consequences.’
“That case was cited * * * in Dennehy v. McNulta, 86 Fed. 825, 827, 829, 80 C. C. A. 422 (41 L. R. A. 609). * * *
“It is undoubtedly the general rule that a contract made in violation of a statute is void, and no recovery can be had upon it; as in Embrey v. Jemison, 131 U. S. 336, 348 (9 Sup. Ct. 776). That was an action upon a promissory note given in execution of a contract for the purchase of ‘ future delivery ’ cotton, neither the purchase nor delivery of the actual cotton being contemplated by the parties, but the settlement in respect to which was to be on the basis of the ‘ difference ’ between the contract price and the market price of cotton futures, according to the fluctuations in the market. The contract was held to be a wagering contract, and therefore illegal and void.”

See, also, Miller v. Ammon, 145 U. S. 421 (12 Sup. Ct. 884); McMullen v. Hoffman, 174 U. S. 639, 654 (19 Sup. Ct. 839).

Assuming therefore that relator is a “trust” or monopoly as defined by our laws, its independent or collateral contracts, such as is sued on in this case, are just as valid and enforceable as are the contracts of any other person or corporation, unless some statute has changed the rule of the common law in that respect. The only statutes touching the matter are Act No. 255, Pub. Acts 1899, and Act No. 329, Pub. Acts 1905. Subdivision 5 of section 1 and sections 2, 3, and 8 of the act of 1899 are here referred to. Act No. 329 of 1905 is entitled:

“ An act relative to agreements, contracts and combinations in restraint of trade or commerce.”

It is declared to be supplementary to, and declaratory of, and in addition to, Act No. 255, Pub. Acts 1899. Its-first five sections are material here, and are referred to. Neither of the acts undertakes to prohibit or forbid the making of such contracts as the one involved in this suit. It is evident that by the language of section 8 of the act of 1899, and section 5 of the act of 1905, above referred to, the legislature did not leave to inference or implication the illegality of the particular contracts which it was dealing with.

The language of Justice Harlan, in Connolly v. Union Sewer Pipe Co., supra, where he deals with the special defense in that case based upon the “Sherman anti-trust act,”is pertinent here:

“ The special defense based upon Act Cong. July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], was also properly rejected. * * * Much of what has just been said in reference to the first special defense, based on the common law, is applicable to this part of the case. If the contract between the plaintiff corporation and the other named corporations, persons, and companies, or the combination thereby formed, was illegal under the act of congress, then all those, whether persons, corporations, or associations, directly connected therewith, became subject to the penalties prescribed by congress. But the act does not declare illegal or void any sale made by such combination, or by its agents, of property it acquired or which came into its possession for the purpose of being sold; such property not being at the time in the course of transportation from one State to another or to a foreign country. The buyer could not refuse to comply with this contract of purchase upon the ground that the seller was an illegal combination which might be restrained or suppressed in the mode prescribed by the act of congress; for congress did not declare that a combination illegally formed under the act of 1890 should not, in the conduct of its business, become the owner of property which it might sell to whomsoever wished to buy it. So that there is no necessary legal connection here between the sale of pipe to the defendants by the plaintiff corporation and the alleged arrangement made by it with other corporations, companies, and firms. The contracts under which the pipe in question was sold were, as already said, collateral to the arrangement of the combination referred to, and this is not an action to enforce the terms of such arrangement. * * * In the case of The Charles E. Wisewall, 74 Fed. 802, which was a libel in rem by certain tug owners against a steam dredge to recover the value of certain services rendered by the tug in towing the dredges, it was sought to avoid payment for the services thus rendered upon the ground that the tug' owners were members of an association which was illegal and void under the Sherman act. The court, assuming that the agreement by which the tugs acted in unison was prohibited by that act, said:
“‘He (the claimant) should not be permitted to repudiate his just debts to the individual tugs because their association was illegal. Having asked for their services, and having accepted the benefit thereof, he should pay. * * * An agreement by the tug Mayflower to tow the dredge Wisewall, for a reasonable sum, from Albany to Troy, is not void because the Mayflower is associated with other tugs to regulate the price of towing at Albany. Should the claimant purchase a pair of trousers at an Albany clothing shop, he would find it difficult to avoid paying their actual market price because the vendor and other tailors of that city had combined to keep up prices.’
"Nor can the defendants refuse to pay for what they bought upon the ground that the seventh section of the Sherman act gives the right to any person ‘ injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful ’ by the act to sue and recover treble the damages sustained by him. We shall not now attempt to declare the full scope and meaning of that section of the act of congress. It is sufficient to say that the action which it authorizes must be a direct one, and the damages claimed cannot be set off in these actions based upon special contracts for the sale of pipe that have no direct connection with the alleged arrangement or combination between the plaintiff and other corporations, firms, or companies. Such damages cannot be said, as matter of law, to have ■directly grown out of that arrangement or combination. * * * If the act of congress expressly authorized one who purchased property from a combination organized in violation of its provisions to plead, in defense of a suit for the price, the illegal character of the combination, that would present an entirely different question. But the act ■contains no such provision.”

Chicago Wall Paper Mills v. General Paper Co., 147 Fed. 491, 78 C. C. A. 607. It was held there that a contract for the sale of merchandise is not rendered illegal by the fact that the selling corporation is a “ trust ” or monopoly organized in violation of law, either Federal or State; the contract of sale being collateral and having no direct :relation to the unlawful scheme or combination. The following cases are cited: Hopkins v. U. S., 171 U. S. 578 (19 Sup. Ct. 40); Anderson v. U. S., 171 U. S. 604 (19 Sup. Ct. 50); Star Brewery of Chicago v. U. S. Breweries Co., 121 Fed. 718, 58 C. C. A. 133; Harrison v. Refining Co., 116 Fed. 304, 53 C. C. A. 484 (58 L. R. A. 915). This case was in the seventh circuit. Opinion by Jenkins, C. J., and concurred in by Grosscup and Humphrey. The opinion commences with the following language :

£C The objection that the appellee is an illegal trust or monopoly condemned by the law of the State of Illinois, and so declared by the supreme court of that State, cannot be sustained. We have held, in the case of an injurious combination of the nature here asserted, that the rem edy is by direct proceedings; that with respect to a contract which is independent of the illegal combination, and is merely incident to other and innocent purposes, one who voluntarily and knowingly deals with parties so combined cannot on the one hand take the benefit of his bargain, and on the other hand defend against the contract on the ground of the illegality of the combination. Dennehy v. McNulta, 30 C. C. A. 422, 86 Fed. 835 (41 L. R. A. 609). See, also, National Folding Box & Paper Co. v. Robertson, 99 Fed. 985.”

Reference is also made to Connolly v. Sewer Pipe Co., supra. Hadley-Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 343, 74 C. C. A. 463, opinion by Van Devanter, C. J., concurred in by Judges Hook and Lochren. The Highland Glass Company, a Pennsylvania corporation, engaged in manufacturing glass in that State, received and accepted an order for the manufacture and delivery of glass from the Hadley-Dean Glass Company, a Missouri corporation. There was some evidence tending to show that at the time of making the contract the plaintiff and others, not including the defendant, were in an unlawful combination to stifle competition to the sale of glass, and to arbitrarily control its price, and because of this it was contended that in directing a verdict for the plaintiff the court failed to give effect to the anti-trust statute of Missouri, and to the anti-trust legislation of congress. After holding that, as to the said statute, it could have no application to the contract under consideration without impinging upon the exclusive authority of congress to regulate commerce among the several States, the court proceeds to consider the “Sherman anti-trust act,” and quotes therefrom, and proceeds in the following language:

“That it does not render illegal or prevent a recovery on this contract is shown by Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (33 Sup. Ct. 431).”

The only provision in either the act of 1899 or 1905 which gives any force to the claim that the collateral contracts of “ trusts ” and monopolies are void and unenforceable in this State, is that contained in section 3 of the act of 1899, which in substance provides that “every foreign corporation violating any of the provisions of this act is hereby denied the right, and prohibited from doing business in this State; and it shall be the duty of the attorney general to enforce this provision by bringing proper proceedings in quo warranto,” and the provision of section 4, act of 1905. There is not a word in either statute that gives a purchaser of goods the right to plead these statutes as a defense. As we have already indicated, it is not contended but that the relator is duly and regularly organized as a corporation under the laws of Wisconsin, and. that its articles of incorporation state a purpose entirely lawful and legitimate. The notice of special defense, in effect and substance, is that, although the relator was duly and legally incorporated under the laws of Wisconsin authorizing the formation of corporations for a perfectly legitimate and lawful purpose, and although its articles of incorporation state a purpose in compliance with such laws, nevertheless the real purpose of the incorporation was unlawful, viz., to carry out restrictions in trade and commerce, contrary to the common and statute law. In short, to create a “trust” or monopoly.

If the articles of the relator state a purpose for which the statute authorizes a corporation to be formed, then, if other requirements of the law are compiled with, it is not only a corporation de facto, but it is a corporation de jure. In such a case the illegality of its organization cannot be attacked at all, and it can only be shown that the corporation is guilty of a misuser of its corporate franchises by attempting, under the guise of a legal corporate existence, to conduct a business not authorized by its charter, or in a manner contrary to law, or some principle of public policy; and this by a direct proceeding to test its right. Attorney General v. Lorman, 59 Mich. 162 (26 N. W. 311, 60 Am. Rep. 287); Detroit Driving Club v. Fitzgerald, 109 Mich. 675 (67 N. W. 899); 2 Morawetz on Private Corporations (2d Ed.), § 758; Blair v. City of Chicago, 201 U. S. 450 (26 Sup. Ct. 427). The rule that, where a corporation is incompetent by its charter to do an act, a private party cannot raise the question, but the sovereign alone can object, in a direct proceeding instituted for that purpose, applies here. This rule has frequently been applied to ultra vires acts of national banks. National Bank v. Matthews, 98 U. S. 621.

In conclusion, we quote the following from 10 Cyc. p. 256:

“This brings us to the doctrine, founded in public policy and convenience and supported by an almost unanimous consensus of judicial opinion, which is that rightfulness of the existence of a body claiming to act, and in fact acting in the face of the State, as a corporation, cannot be litigated in actions between private individuals, or between private individuals and the assumed corporation, but that the rightfulness of the existence of the corporation can be questioned only by the State; in other words, that the question of the rightful existence of the corporation cannot be raised in a collateral proceeding.”

More than 100 cases are cited in the note from 30 States of the Union and United States Supreme Court. The Michigan cases are Montgomery v. Merrill, 18 Mich. 338; Toledo, etc., R. Co. v. Johnson, 49 Mich. 148 (13 N. W. 492); Wyandotte Electric Light Co. v. City of Wyandotte, 124 Mich. 43 (82 N. W. 821).

It seems very clear to us that persons who buy goods or receive services from members of a combination cannot interpose the defense that the plaintiff is a party to an independent combination in restraint of trade in no way affecting the contract sued upon, unless, as in some few States, there is an explicit statutory provision creating such a defense; and that there is no such statutory provision in Michigan.

We are of opinion that the claimed defense is not available to, and cannot be maintained by, the defendant in the pending suit.

It follows that the order made by the respondent should be vacated, and the writ of mandamus will issue as prayed for in relator’s petition, with costs to the relator against the defendant De Puy.

Bird, C. J., and Ostrander, Hooker, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    THEISEN v. DETROIT UNITED RAILWAY.
    1. Street Railways — Negligence—Contributory Negligence —Highways and Streets.
    Knowledge of a person injured at a street railway intersection, that cars were required by ordinance and were accustomed to stop before crossing the intersection, and his reliance on the fact, have a material bearing on the question of contributory negligence in driving a hose cart across in front of the car, which he saw approaching some distance from the street intersection.

    2. Same — Contributory Negligence — Fire Department.
    Such reliance on the ordinance and custom, where the city charter also gave the fire apparatus the right of way over other vehicles, made the question of contributory negligence a question of fact.

      3. Same.
    If the driver had his horses under control and attempted to cross in front of a car which he saw from 40 to 70 feet away from the usual stopping place, it was for the jury to say whether he was justified in relying on the motorman’s performance of his duty to stop the car.

      Error to Wayne; Hosmer, J.
    Submitted June 23. 1910.
    (Docket No. 137.)
    Decided September 28, 1910.
    Case by Anthony Theisen against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.
    Brennan, Donnelly & Van De Mark (A. B. Hall, of counsel), for appellant.

      O’Neil & Command, for appellee.

       As to liability of street railway company for injuries caused by collision with fire apparatus, see note to Dole v. New Orleans R. & L. Co. (La.), 19 L. R. A. (N. S.) 623.

   Blair, J.

Plaintiff, while driving a hose cart to a fire in the line of his duty as an employe of the fire depart' ment, was injured in a collision with one of defendant’s cars at the intersection of Brush and Adams streets in the city of Detroit. Defendant was operating a double-track line on Adams avenue and a single-track line on Brush street. Plaintiff was proceeding east on Adams avenue at a speed of about 10 miles an hour, requiring a space of 150 feet within which to stop his horses. There is a building at the northwest corner of Brush and Adams extending out to the sidewalk lines of both streets. The city charter gives to the fire department vehicles the right of way over all other vehicles except the United States mail vehicles. The ordinances of the city of Detroit require street railway cars approaching an intersecting street occupied by other tracks to come to a stop at least 20 feet in front of the intersecting tracks. The hose cart proceeded without slackening speed until it approached within 40 feet of the track on 'Brush street, when the plaintiff discovered a car approaching from the north 40 to 70 feet away and proceeding, according to his testimony, at a speed of 12 miles an hour. There is a conflict of testimony as to whether the car stopped before crossing the tracks on Adams avenue, the plaintiff and his witnesses claiming that the car did not stop, and the defendant’s witnesses claiming that it did. Upon seeing the car, the plaintiff urged his horses across the tracks, and the hose cart was either struck by the car or struck the car in such a manner as to completely turn over the hose cart and throw it on the sidewalk at the southeast corner of Brush and Adams.

Defendant’s motorman testified:

“ To my best judgment I stopped about 25 feet north of the Adams avenue track that night. The front part of the car I was on was back of the building line of the terrace on the corner about 8 or 9 feet. When I stopped at the corner, I could see west on Adams avenue 150 or 200 feet. At that time the car just made a momentary stop, and then went right on again. * * *
“Q. When you got to the north curbstone on Adams avenue, you saw the hose cart ?
“A. I noticed it then; yes, sir. * * *
“Q. Then you say that you had only gone 13 feet, about 13 feet when you saw the hose cart, and still you went 23 feet before you stopped the car ?
“A. About that.
“Q. It took you 23 feet to stop the car in when you had only been going 13 feet from a full stop, is that right ? Now, when you passed the line of the terrace, did you make any effort to look in a westerly direction to see if any vehicle was coming ?
“A. I looked when I made the stop. I don’t know as I looked when I passed that certain point there.”

Capt. Courtney testified:

“Why, we were about, I should judge, about 40 feet from the Brush street track on Adams, proceeding east, when I noticed the car coming south. I presume it was up maybe about 75 feet from the crosswalk of Adams avenue on Brush, coming south.
“Q. Where was the hose cart situated on Adams with reference to the track ?
“A. Well, we were up on right-hand side of the street. We were practically at the south track on the south side of the street. There is a double track along there on Adams avenue. * * * The cars usually stop before they cross that intersection. The car was going, in my estimation, 30 miles an hour at the time they struck the hose wagon. It was going faster than we were. The distance between the nearest track and the curb would be about 15 or 16 feet.”

The questions for our consideration, as stated by counsel for defendant and appellant in their brief, are as follows:

“ While there are 15 assignments of error in the record, the defendant and appellant relies for reversal upon the error of the trial judge in his failure to direct a verdict at the close of the plaintiff’s case, and upon the theory of his charge that because an ordinance of the city required the street cars to stop at least 20-feet in front of intersecting tracks, and because an ordinance of the city of Detroit gave the right of way to fire engines, that the driver of a hose cart could approach a street railway track at a point where it intersects with other tracks at a rate of speed of 10 miles an hour and without having his horses under control so that he could stop them within 150 feet. It was the theory of the trial judge that, while the driver of a hose cart approaching a street railway track on a street where there was no intersecting track would be required to obey the rule laid down by this court governing all persons approaching a street car track, this rule would not be applicable where the hose cart was proceeding along a street containing a car track and where the driver relied upon the ordinance requiring all street cars to stop at least 20 feet before intersecting tracks.”

It appeared from plaintiff’s testimony that he was familiar with the ordinance requiring the cars to stop and with the custom of the defendant’s employés to obey the ordinance and bring their cars to a stop, and that he relied upon their performing such duty in approaching this crossing. This knowledge and reliance of the plaintiff has a distinct bearing upon the question of his contributory negligence. McKernan v. Railway Co., 138 Mich. 520 (101 N. W. 812, 68 L. R. A. 347). And these facts make this case, so far as contributory negligence is concerned, a stronger case for the plaintiff than the case of Garrity v. Railway Co., 112 Mich. 369 (70 N. W. 1018, 37 L. R. A. 529), where the cars were required to and did cross the street before coming to a stop.

Furthermore, if the driver saw the car from 40 to 70 feet north of the usual stopping place, we cannot say, as a matter of law, he might not have been justified in attempting to cross, if his horses were under control, in reliance upon the motorman’s performance of his duty. Garrity v. Railway Co., supra.

We are, therefore, of the opinion that the question of plaintiff’s contributory negligence was for the jury, and that the circuit judge did not err in refusing to direct a verdict for defendant.

The judgment is affirmed.

Bird, C. J., and Ostrander, Hooker, and Stone,. JJ., concurred.


author: Stone, J.

text:
    IMPERIAL CURTAIN CO. v. JACOB.
    1. Corporations — Incorporation—Foreign Corporations — Evidence.
    That a plaintiff is a corporation and is doing business under the name of the “ Imperial Curtain Company,” is prima facie evidence of its due incorporation, in an action of assumpsit by a foreign corporation. 3 Comp. Laws, § 10194
    2. Same — Statutes.
    The statute applies to both foreign and domestic corporations.
    3. Same — Plea—Proof of Incorporation.
    The plea of the general issue is an admission that plaintiff, suing as a corporation, is properly incorporated.
    4 Same — Pleading—Incorporation.
    It was unnecessary to. allege the incorporation of plaintiff, a foreign corporation, under any particular State law.
    5. Constitutional Law — Interstate Commerce — Words and Phrases — Definition.
    Interstate commerce is a term of largest import; it comprehends intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities between citizens of one country and the citizens or subjects of other countries, and between citizens of different States.
    6. Same — Interstate Commerce — Foreign Corporations.
    Placing a printed advertisement, prepared in and shipped from one State, on the theater curtain in a city of another, under a contract to maintain and display the advertisement to audiences in the theater, for a period of three years, where' the contract was negotiated in the city in which the advertisement was displayed and approved in the foreign State,, is not interstate commerce, but business of a local character.
    7. Corporations — Foreign Corporations — License to Transact-Business.
    A foreign corporation cannot recover for such local business; without being authorized to do business in Michigan, underAct No. 206, Pub Acts 1901, as amended by Act No. 34, Pub-Acts 1903, and Act No. 310, Pub. Acts 1907.
    Error to Wayne; Donovan, J.
    Submitted June 23,. 1910.
    (Docket No. 131.)
    Decided September 28, 1910.
    Assumpsit by the Imperial Curtain Company against Ben. B. Jacob and Sol. Sallan, copartners as the Reliable Pawnbrokers, on a contract for advertising. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.
    Reversed, and no new trial ordered.

      Friedman & SmilansJcy, for appellants.

      George W. Bates, for appellee.
   Stone, J.

This is an action of assumpsit brought to recover the amount alleged to be due for printing, placing, and maintaining an advertisement by the plaintiff on, the street curtain of the Gayety Theater, Detroit. The; advertisement was solicited by a traveling agent of the plaintiff on May 5, 1907, who sent the contract to the ¿tome office of the plaintiff, in Philadelphia, for approval. The contract was as follows:

“ No payments to be made to agents except upon written. authority. Verbal understandings or agreements will not he recognized.
“Imperial Curtain Company,
“737 Walnut Street, Philadelphia.
“In consideration of the Imperial Curtain Company placing our advertisement on the street drop of the Gayety Theater, in the city of Detroit, State of Michigan, for three years from the date of first exhibit of advertisement to an audience, said advertisement to occupy 24x30 inches, we agree to pay to the Imperial Curtain Company the sum of one and fifty one-hundredths dollars ($1.50) per week, payable every four weeks in advance, payments to date from the day said advertisement is first exhibited to an audience in said theater. * * *
“The Imperial Curtain Company is to make a rebate of $1.50 for each entire week the advertisement is not displayed during the life of this contract. In case we do not furnish copy when requested, the Imperial Curtain Company is authorized to make up our copy themselves. We agree to change advertisements twice a year during contract.
“Date: 5/17-07.
“ Full name of advertiser:
“Reliable Pawnbrokers,
“ Signed by Jacob & Sallan,
“Address 228 Randolph.
“Imperial Curtain Company,
“M. B. Schlesinger, Solicitor.”

The contract was approved by the plaintiff, and the defendants were notified by letter of May 21, 1907, as follows:

“ May 21, 1907.
“Reliable Pawnbrokers,
“228 Randolph St., Detroit, Mich.
Gentlemen: We are in receipt of your contract obtained by our Mr. Schlesinger to place your advertisement on the advertising drop of the Gayety Theater, Detroit, for three years from date of first exhibit. Kindly accept our thanks. We hope you will find it of great benefit to you.
“Yours very truly,
“Imperial Curtain Co.,
“ EL E. Naegele, Sec’y-

The agent of the plaintiff prepared a copy of the advertisement, and at the time the contract was sent to the home office in Philadelphia a copy of the advertisement accompanied it. This was subsequently printed in Philadelphia and sent to the Gayety Theater by express, and was placed on the drop curtain of the theater by pasting it thereon, and the same was there maintained and displayed continuously during the theatrical seasons of 1907 and 1908. The suit originated in justice’s court, where the plaintiff had judgment. The defendants appealed to the circuit court, where the circuit judge directed a verdict for the plaintiff. The defendants bring error. The questions argued were raised by exception, and error has been assigned.

The case may be disposed of by considering the following points urged by defendants:

(1) That there was no proof of the due incorporation of the plaintiff under the law of any State.
(2) That, as a foreign corporation, it is required to file articles of incorporation here, in order lawfully to do business in this State; and this involves the question whether this business was interstate commerce, or was business of a purely local character.

The undisputed evidence shows that the order or contract was addressed to “ Imperial Curtain Company, 737 Walnut Street, Philadelphia.” The summons named “The Imperial Curtain Company, a corporation.” The plea was the general issue. It seems to us that under the statute (section 10194, 3 Comp. Laws) the fact that the plaintiff was doing business under a certain name was prima facie evidence of Jits due incorporation. There was in the act of the defendants in signing the contract or order evidence of the name and lawful existence of the plaintiff as a corporation, which clearly brings the case under the provisions of the statute above referred to. This statute applies equally to foreign and domestic corporations. As there was no countervailing evidence, this was sufficient. Lake Superior Bldg. Co. v. Thompson, 32 Mich. 293. We agree with plaintiff’s contention that, under the plea of the general issue, the incorporation of the plaintiff was practically admitted. Garton v. Union City Nat. Bank, 34 Mich. 279; Wilson Sewing Machine Co. v. Spears, 50 Mich. 534 (15 N. W. 894). Nor was it necessary to allege its incorporation under any particular State law. The objection is purely technical, and without merit.

Was this interstate commerce ? Commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale', and exchange of commodities between citizens of one country, and the citizens or subjects of other countries, and between citizens of different States. 7 Cyc. p. 412. Sales of goods by a corporation situated without a State to a resident of the State, even though made through traveling salesmen or agents sent into the State, to be shipped to him into the State, belong to the operations of interstate commerce, and are consequently not subject to a prohibition of the State Constitution, or statute against foreign corporations doing business within the State, nor otherwise subject to prohibition or regulation by the State. 19 Cyc. p. 1230, and note citing cases. The law in force at the time the contract was made was Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903. The act in force at the time the contract was being carried out by the plaintiff was Act No. 310, Pub. Acts 1907. Each of these acts provides that it shall not be construed to prohibit any sale of goods or merchandise which would be protected by the rights of interstate commerce. If the plaintiff did no business of a local character, the case is not within the terms of the statute.

The plaintiff contends that the placing of a printed advertisement prepared in and shipped from Philadelphia on the theater curtain in Detroit amounted to nothing more or less than the delivery and installation of the commodity or the article of merchandise contemplated in the contract, and that the contract is not affected by the statute. Counsel for defendants concede that no charge was to be made for placing the advertisement upon the curtain. They claim that the maintaining and displaying of this advertisement to the audiences in the theater, for the period of three years, or any other considerable period; was business of a purely local character, and not interstate commerce. "We agree with them in this claim. Even though" it should be held that the contract was accepted in Philadelphia, we cannot see how this fact would make any difference in the disposition of the case. The statutes with reference to foreign corporations were not made merely for the purpose of preventing foreign corporations from coming into Michigan and making contracts here, but were passed principally for the purpose of preventing foreign corporations from carrying on their business in this State without subjecting themselves to certain liabilities and obligations. It was the prevention of work within the State that was aimed at, and it was for work and service in this State that this suit was brought, as appears by the record. Counsel for plaintiff concedes that it is a foreign corporation, and the evidence is undisputed that it has not complied with the requirements of our statute relative to the admission of foreign corporations to carry on business in this State. The contract in this case, when properly construed, required the plaintiff to furnish the space, place the advertisement, and maintain and display the same for the period of three years at the Gayety Theater in the city of Detroit, and it was for the recovery of the contract price of two years’ maintenance and display of such advertisement that t.hi« suit was brought. This part of the contract was to be performed wholly in Michigan, and was purely of a local character. If this contract had been simply for the manufacture in Philadelphia of an advertisement, and the installation of the same in the theater, a different question would be presented. We are of opinion that the case is governed and controlled by the case of Haughton Eleva tor & Machine Co. v. Candy Co., 156 Mich. 25, 27 (120 N. W. 18, 19). In that case, Justice Grant said:

“ If this contract were merely for the installation of a new elevator, plaintiff could urge with much reason that it was an act of interstate commerce, and did not fall within the cases of Hastings Industrial Co. v. Moran, 143 Mich. 679 (107 N. W. 706), and Pittsburgh Construction Co. v. Railroad Co., 154 Fed. 929, 83 C. G. A. 501 (11 L. R. A. [N. S.] 1145), but within Milan Milling Co. v. Corten, 93 Tenn. 590 (27 S. W. 971, 26 L. R. A. 135), and other similar cases. But repairs to buildings and machinery are in no sense interstate commerce. That part of the contract was to be performed wholly in Michigan. * * * It is local business, and corporations which undertake such work, even in a single transaction, come within the prohibition of the statute. Bee Rough v. Breitung, 117 Mich. 48 (75 N. W. 147).”

The court below erred in refusing to direct a verdict for the defendants on the ground that the plaintiff was a foreign corporation, and under the evidence had no right to do business in this State.

For the error pointed out, the judgment of the circuit court is reversed, and, there being no dispute as to the facts or subject-matter of the suit, no new trial is granted.

Bird, O. J., and Ostrander, Hooker, and Blair, JJ., concurred.


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    PEOPLE v. SHARP.
    1. Criminal Law — Trial—Jury—Misconduct op Juror.
    After learning, upon an investigation, that a juror, engaged in the trial of a prosecution for assault with intent to murder, had stated publicly in a saloon during the trial that when he was on a jury and got his mind made up, it would take more than they then had to change it, the court properly discharged the jury, and continued the case to the next term of court.
    2. Same — Constitutional Law — Former Jeopardy.
    The first trial, resulting in a continuance because the juror was disqualified, did not constitute a former jeopardy.
    3. Same — Trial—Cross-Examination.
    It was proper for the trial judge to permit such cross-examination of respondent’s wife, who was offered by him as a witness, as would enable the jury to discover her true character and to judge of the weight which they should give to her testimony.
    4. Same — Evidence—Curing Error.
    Where the defense was that the respondent had learned of improper relations between his wife and the complaining witness, and had attacked and shot the latter while temporarily-deranged, error was not committed in receiving evidence of previous improper conduct, offered in good faith by the prosecutor who expected to prove knowledge of the same by respondent, but failed to show such knowledge, the testimony being stricken out by the court, although no reference was made to the withdrawal of the evidence in charging the jury.
    5. Same — Trial—Argument op Prosecutor.
    Impassioned argument by the prosecuting attorney is not reversible error, unless it is unwarranted by the evidence and probably contributed to the result.
    6. Same — Requests to Charge — Assault with Intent,to Murder.
    Any possible error in the refusal of requests to charge, and in the court’s charge concerning the crime of assault with intent to murder, was cured by a verdict convicting respondent of the lesser charge of assault with intent to do great bodily harm less than murder.

      Exceptions before judgment from Mecosta; Perkins, J., presiding.
    Submitted June 34, 1910.
    (Docket No. 142.)
    Decided September 28, 1910.
    Benjamin Sharp was convicted of assault with intent to <do great bodily harm less than the crime of murder.
    Affirmed.

      Cogger & Broomfield, for appellant.

      ■Joseph Barton, Prosecuting Attorney, for the people.
   Stone, J.

This case is here upon exceptions before -sentence, the respondent having been convicted of the of.fense of assault with intent to do great bodily harm less than the crime of murder, the information charging that ■-the respondent at the township of Austin, in the county of Mecosta, on October 6, 1908, made an assault upon one Eewis Powers, with intent him, the said Lewis Powers, then and there to kill and murder. Upon arraignment the respondent stood mute, and a plea of not guilty was «duly entered. The case came on for trial before a jury 'duly impaneled and sworn at the February, 1909, term of said court.

After the trial had proceeded into the second day, and rafter the people had rested their case, and the respondent •had sworn two witnesses, the misconduct of one of the jurors was brought to the attention of the trial judge, who made an investigation into the matter by an examination ■of divers persons, from which it appeared, to the satisfaction of the trial judge, that the said juror had, during the trial of said cause, and after the people had rested their case and two witnesses had been examined on behalf of the respondent, stated publicly, in a saloon in the city where said trial was being had, as follows:

“I tell you when I am on a jury, and get my mind made up, by-, it will take more than they have got now to change it.”

The trial judge, having upon investigation become satisfied that said juror was biased, and disqualified, and unfit to'sit in the cause, made and entered the following order in the journal of the court: After stating the title of the cause, and the progress which had been made therein, the order proceeds:

“At this point, it having come to the knowledge of the court that one of the jurymen, Ed. Lewis, had disqualified himself from further acting as a juror in this cause by Laving expressed in public, at the time when the cause was but partly concluded and before hearing all the evidence on the part of the defendant, the following: (here follows the language above quoted) thereby, in the judgment of the court, disqualifying him from sitting further in the case, therefore, it is ordered by the court now here that the jury be, and is hereby, discharged from the further consideration of this cause. And it is further ordered that this cause be continued until the next term of this court, recognizance to remain in full force and effect. The attorneys for respondent excepted to the action of the court in discharging the jury, and moved that the respondent be discharged, having been once in jeopardy, which motion was overruled by the court, and exception taken by attorneys for respondent.”

Thereafter, and at the September, 1909, term of the court, before another jury was impaneled and sworn in said cause, the respondent filed a plea of former jeopardy, setting forth the facts above stated in detail, and at great length, which plea was overruled and denied by the court, and to which ruling respondent’s attorneys duly excepted. Thereupon the court proceeded to try said cause before a jury.

Upon the part of the people the evidence tended to show that, on the evening of October 6, 1908, the respondent, while driving on the highway with his brother, met the said Lewis Powers; that the respondent there accused the said Powers of having been guilty of improper ■conduct with the wife of respondent, and, after some words and threats, the respondent shot said Powers with .a revolver, inflicting a severe wound in the region of the spine, causing paralysis of the legs. It appeared that the respondent and his wife were stopping temporarily with his father’s family, where the wife of respondent and two children by a former wife had been staying while respondent was .West at work during the season of harvest; that during the afternoon of October 6th respondent had been told by one Charles Linsay, a brother-in-law, that Powers had been guilty of improper and criminal conduct with the young wife of respondent, while he, the respondent, had been in the West; that the respondent confronted his wife with these charges, and that she finally admitted the truth of the charges; that respondent became excited and angry, and told his wife that they could not longer live together; that she had packed her trunk and had gone to the depot to take the train to Grand Rapids; that respondent was taking her trunk to the depot, also intending to go to Grand Rapids to have a final settlement with the wife, when he met Powers, and the shooting took place.

The defense relied upon mainly was temporary insanity, and that respondent was not responsible for his conduct and not capable of entertaining a criminal intent, and there was evidence tending to show that his mother and other relatives had been insane. There are 57 assignments of error. We have carefully examined the record, and do not deem it profitable to examine each of these assignments separately. They may be classified as follows :

(1) Error in overruling the plea of former jeopardy.
(2) Errors in overruling objections of respondent’s counsel in the cross-examination of respondent’s wife, Gazella Sharp.
(3) Rulings of the court in overruling objections of respondent’s counsel in the examination of Mary Smith Jackson.
(4) Errors in argument of prosecuting attorney to the jury.
(5) On the charge of the court.
(6) In refusing to charge as requested.

We shall consider these questions in the order in which they are above stated.

We are of opinion that the conclusion reached by the circuit judge, the method pursued, and the order made by him, relating to the bias and disqualification of the juror named, were fully justified by the facts disclosed, and find support in the case of In re Ascher, 130 Mich. 540 (90 N. W. 418, 57 L. R. A. 806), and the authorities there cited. That is a well-considered case. Its doctrine has never been' modified, and it has recently been cited with approval. Cooper v. Carr, 161 Mich. 412 (126 N. W. 468). We deem it wholly unimportant whether the juror was disqualified when impaneled and sworn, or whether he became corrupted and disqualified during the progress of the trial. In either case the duty of the court to act when such disqualification is discovered is imperative. Much must be left to the sound sense and good judgment of the trial judge in such a case. As was said by Mr. Justice Story in United States v. Perez, 9 Wheat. 579:

“We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere.”

We are of opinion that the trial judge did not err in overruling and denying the plea of the former jeopardy.

In view of the broad scope taken in the direct examination of Gazella Sharp, the wife of respondent, we do not think that there was any error in overruling the objections of respondent’s counsel in the cross-examination of this witness. As was said by Justice Durand in People v. Harrison, 93 Mich. 596 (53 N. W. 726):

“It was the duty of the circuit judge, upon the cross-examination of the witness, to permit such reasonable interrogation upon the subject as would fairly disclose to the jury her true character, and thus enable them to judge of the weight which should be given to her testimony.”

See, also, Knickerbocker v. Worthing, 138 Mich. 239 (101 N. W. 540), and cases there cited. We do not deem it necessary or profitable to here set forth the questions referred to.

In rebuttal, the prosecuting attorney sought to show by the witness Mary Smith Jackson certain alleged prior improper conduct of the wife of the respondent, and that the same had been brought to the knowledge of the respondent. It was claimed that this was proper evidence as bearing upon the real condition of the mind of the respondent at the time of the alleged assault in this case. It appearing, however, that there was no evidence that such alleged prior misconduct had ever come to the knowledge of the respondent, the trial judge struck out the entire testimony of the witness Mary Smith Jackson, and so announced in the presence of the jury. We gather from the record that the prosecuting .attorney acted in good faith in attempting to introduce this evidence, and believed he could show knowledge in the respondent, as claimed. We do not think that there was reversible error here. While the trial judge might have in the charge properly called the attention of the jury to the fact that this testimony had been withdrawn from their consideration, yet, he having ordered it stricken out on the trial, we do not think that the jury was misled.

Much complaint is made of the argument of the prosecuting attorney before the jury. The condition of the respondent’s mind at the time of the assault was a subject much discussed by counsel on both sides. The prosecuting attorney argued that respondent’s counsel were invoking the doctrine of the “unwritten law,” while the latter claimed that they were within the law as held in this State. While the arguments of counsel were somewhat impassioned, a careful reading of the argument of the prosecuting attorney fails to disclose any such extreme language as would justify us in reversal of the case. The language of Mr. Justice Blair, in People v. Peck, 147 Mich. 95 (110 N. W. 498), is applicable here:

“We are not disposed to reverse convictions in criminal cases because of the impassioned arguments of the prosecuting officers, unless we can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result.”

The charge of the court consisted largely of a discussion of the subjects of murder and assault with intent to murder, and correctly stated the law upon those subjects, as defined by this court. As the respondent was convicted of the lesser offense of assault with intent to do great bodily harm, much of the criticism of counsel is without force, as respondent was acquitted of the graver charge. People v. Farrell, 146 Mich. 264 (109 N. W. 440). The assignments of error are so general that it might be said that they are not entitled to consideration. We have, however, examined them in connection with the charge, and are of the opinion that there is no error in the charge.

Most of respondent’s requests to charge relate to the graver offense of assault with intent to murder. Bearing in mind the verdict of the jury, we do not think that the trial judge erred in declining to give them, especially as the substance of them is embraced in the charge. The case appears to have been properly submitted to the jury in a clear charge in the language of the trial judge.

We find no reversible error in the record, the conviction of the respondent is affirmed, and the circuit court is directed to proceed to judgment.

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


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    KLOTZ v. CHATFIELD.
    Appeal and Error — Questions Reviewable — Taxation—Defective Special Assessment — Payment.
    On a bill to enjoin the levy and enforcement of a drain tax, which, itaverred, was jurisdictionally defective, a showing by the State, on appeal, that, after the entry of a decree in the court below, the board of supervisors reassessed the tax which had been paid by a third party, does not properly bring the question of payment before the Supreme Court, and requires that the cause be remanded for a hearing on the point raised.
    Appeal from Lenawee; O’Mealey, J.
    Submitted June 29, 1910.
    (Docket No. 109.)
    Decided September 28, 1910.
    Bill by Effie Klotz against Willis Chatfield, drain commissioner, William Britton, treasurer, James B. Bradley, auditor general, and others, for the cancellation of a drain tax. From a decree for complainant, defendants appeal.
    Remanded for further proceedings.

      Smith, Baldwin & Alexander, for complainant.

      Theodore M. Joslin, for defendants.
   Stone, J.

This case presents the question of the legality of a certain tax for a drain called the “Bay Drain.” The complainant is the owner of the S. W. £ of section 35, in the township of Ogden, Lenawee county, subject to a life estate in her mother, Lydia Klotz. It appears that the mother signed a paper purporting to convey the right of way along the east side of the land in question for said drain, but no attempt was made to obtain from complainant any release or right of way, nor was she named as a party in any of the proceedings. It appears, however, that complainant had knowledge of the proceedings, and consulted with the drain commissioner as to the route of the drain and the point it should reach. The original bill sought to restrain the digging of the drain and compel the filling up of any part started, but before service of injunction was had the drain upon the premises had been dug and completed. An amended bill was later filed, and the auditor general and county treasurer were made defendants, and it was sought to restrain the collection of the tax assessed upon said premises for the construction of said drain, amounting to about $117.

Upon the hearing, it appeared that the said drain tax was in form levied upon the north 60 acres of said premises, but by an error it was returned to the auditor general as against the whole S. W. £ of said section; that the said auditor general, upon being advised of the facts, canceled the said tax as irregular. It appears by a clear preponderance of the evidence that the complainant assented to the digging of said drain, and that the drain was a benefit to the property. The decree below made no provision relating to the digging or maintaining of said ditch or drain, but found that the defendants were proceeding, without jurisdiction, to tax and sell complainant’s lands for the collection thereof. It adjudged and decreed that the proceedings to levy and collect said tax were irregular and void, and that said tax was not a valid lien against complainant’s interest in said land, and that defendants had no right or authority to attempt to sell said land for said drain tax. By the terms of the decree the county treasurer was enjoined from selling said land for said drain tax, or from taking any proceeding to reassess said drain tax against the right, title, and interest of complainant in and to said land, and from making return of said lands to the auditor general for said tax as an unpaid tax. The decree bears date October 22, 1908. The defendants only appealed from the decree.

It is now represented to us by the attorney general, who files a brief in behalf of the auditor general, that since the making of the decree, and taking the appeal, the board of supervisors of said county has reassessed said tax upon the north 60 acres, and that said reassessed tax: was, on the 19th day of April, 1910, paid to the county treasurer by one Leland F. Bean, guardian of Lydia Klotz, the life tenant of the land and the mother of complainant herein, and the attorney general has attached to his brief a' certification of the auditor general as to the records of his office, relative to the land and tax in question, which shows such payment. No costs were awarded by said decree, and if the said drain tax has been paid and legally discharged the complainant has no further interest in said decree or litigation. The matter of payment is not now properly before us. We think that the case should be remanded, the decree opened, with leave to amend the answer, and evidence taken upon the subject of the payment of the tax, to the end that the true condition of the matter may be brought to the attention of the court.

The case will be remanded accordingly.

Ostrander, Moore, Brooke, and Blair, JJ., concurred.


author: Moore, J.

text:
    MARSHALL v. WABASH RAILROAD CO.
    Trial — Conduct on Court — Personal Injuries.
    In an action by a passenger against a carrier for personal injuries, in which the jury awarded a large verdict and the principal issue related to the extent of plaintiff’s injuries, it was error for the trial court to indicate, by remarks, in the presence of the jury, that he had observed that plaintiff was in such pain while on the stand that he had been on the point of interven, ing two or three times to have something done for plaintiff’s comfort.

      Error to Lenawee] O’Mealey, J.
    Submitted June 29, 1910.
    (Docket No. 83.)
    Decided September 28, 1910.
    Case by Lewis J. Marshall against 'the Wabash Railroad Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Smith, Baldwin & Alexander, for appellant.

      Frank M. Sala and Bird & Sampson, for appellee.
   Moore, J.

In February, 1908, plaintiff was a passenger upon one of the trains of defendant, which train was derailed. It is his claim that he then received severe injuries. He sued the company and obtained a judgment for $9,987.50. The case is brought here by writ of error.

Counsel for defendant discuss the assignments of error under 11 heads. The trial of the case was hotly contested. The printed record contains upwards of 350 pages. We shall not go into it in detail, though we have carefully considered it. The case in the main was well tried, and we find that many of the assignments of error are not well taken. We shall refer only to the following groups of assignments of error:

(2) Treatment of defendant’s witness Mr. Bice.
(3) Improper conduct of plaintiff’s counsel during trial.
(4) Improper remarks of court during trial.
(10) Improper argument.

As to groups 2 and 10: The cross-examination of Mr. Bice, and the argument of counsel came dangerously near, if it did not go outside of, the boundary lines of a proper cross-examination, and a proper argument. As the case must be reversed for a reason stated later, we think it unnecessary to decide whether reversible error was committed in this respect.

As to groups 3 and 4: The plaintiff was on the stand as a witness. The record discloses the following:

“ One of the attorneys for the plaintiff (bringing a coat. folded to plaintiff) said, Will it be helpful to you to put this coat behind your back ?
“Mr. Smith: I object to this statement.
‘' Attorney for Plaintiff: He is having pain.
Mr. Smith: There is no evidence of it.
The Court: I think if there can be anything done here that will benefit the witness that it may be done.
“Mr. Smith: He hasn’t manifested any such thing, I submit, or asked for it, or claimed to have been in any pain whatever, and I take exception to this.
The Court: Do you contend that external indications have not been that he is in pain, in some distress ?
“Mr. Smith: I don’t like to state any claim about it. I doubt it myself.
“ The Court to the Attorney: You may pass him the coat that is offered if he desires it.
“ Mr. Smith: Take an exception. (To the ruling and remarks of the court, counsel for defendant excepted.)”

This witness was 'called at the opening of court in the morning. Examination continued:

“Q. Your attorney has just placed a coat behind you ?
“A. Evidently.
*‘Q. Don’t you know ?
“A. Yes, sir.
“Q. You sat all day long in a hard chair right at the end of this table yesterday, didn’t you ?
“A. I certainly did.
“Q. Do you say that you squirmed around and made any indication that you were in pain, sitting in that chair all day long yesterday ?
“A. I did. I certainly was in pain, and it was just as much in evidence as it is now.
“Q. Why didn’t you ask for a cushion yesterday ?
“A. Well, I didn’t think that you had any cushions.
“Attorney for Plaintiff: I object to that as assuming that he asked for a cushion today, which he didn’t.
“The Court: I think the objection is good. The court was on the point two or three times of suggesting to the doctor, before offer of this folded coat to place behind his back, if he needed a rest, or whether he desired the cross-examination to proceed.
“Mr. Smith: I take an exception to this statement. I submit it is not proper for the court to state the impression, and I ask the court now to say to the jury that it is not for their consideration.
“The Oourt: Gentlemen, I suppose we may judge people somewhat by their appearance. Of course, it would be for the jury to say whether these expressions, these movements while in the witness chair, were real, or whether they were simulated, and if they believe that they were simulated it should be taken against the plaintiff instead of in his favor, because this is no place to do anything or to have any acting that is attempted by way of aiding the case of the plaintiff here, and the matter would be for the jury to determine whether what has been observed by the jury, as well as the court and counsel, were real, or whether they were simulated.
“Mr, Smith: I ask the court to say that simulations during the trial of the case, when the case is pending, long after the accident, and expressions of this kind, are not competent.
“ The Court: Expressions of what kind, Mr. Smith ?
“ Mr. Smith: Expressions indicated here by the court’s remarks.
The Oourt: Well, I suppose, Mr. Smith, that if a man was actually suffering pain that he wouldn’t be under obligation, he could hardly be charged with simulation if some outward expressions of that pain were manifested ; but, as I say, the jury would be instructed now and at the conclusion of the case that, if they believe that there is simulation here and there is no real pain, that then what has been witnessed and manifested here should be taken against the plaintiff in undertaking to aid his case and aid a recovery here by acting and by appearance conveyed to the court and the jury and counsel were unreal and simulated, if they so believe.
“Mr. Smith: I didn’t quite care to convey that idea of it, but what I understand the rule to be is that voluntary exclamations right after injury and before a lawsuit is started are competent if detailed or shown, but, after a lawsuit has been started and there is a controversy, X don’t understand that such things are competent.
“The Oourt: X think not.
“Mr. Smith: That is why I object.
“The Court: Except if one is in pain at a particular time, during the trial, and there are manifestations of that, external manifestations, that if assistance is offered to undertake to relieve the pain or make it less, that it is not anything upon which an objection could be founded, so far as the trial is concerned.
“Mr. Smith: X take an exception to the ruling.”

One of the very important subjects of contest was the extent of the injury sustained by plaintiff, and whether he was still suffering pain traceable to the injury, and the extent of it. What we have quoted from the record makes it clear that the jury were given to understand the judge had observed the witness was in such pain that the judge was on the point of intervening two or three times to have something done for the comfort of the witness, who was also plaintiff. An impression of this sort obtained by the jury from the judge would be hard to remove, and we cannot say what then occurred, as shown by the record, did not influence the jury, when it gave the plaintiff the very substantial verdict it did.

While we have examined the other assignments of error, we deem it unnecessary to discuss them further than to say they do not establish reversible error'.

Judgment is reversed, and new trial ordered.

Ortrander, Brooke, Blair, and Stone, JJ., concurred.


text:
    HOSNER v. VILLAGE OF LEONARD.
    Municipal Corporations — Villages—President — Employment of Attorney.
    Section 2727, 1 Comp. Laws, requiring the president of a village to see that the laws relating to the village and the ordinances and regulations of the council are enforced, confers authority on the president to employ an attorney to prosecute the violation of an ordinance, in the absence of any action of the village council providing for the employment of an attorney.

      Error to Oakland; Smith, J.
    Submitted June 28,1910.
    (Docket No. 156.)
    Decided September 28, 1910.
    Assumpsit by William T. Hosner against the village of Leonard for services rendered. A judgmént for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      K. P. Rockwell and H. M. Zimmermann, for appellant.

      George 0. Kinsman and William T. Hosner, for appellee.
   Blair, J.

Plaintiff brought suit to recover, upon the quantum meruit, for his services as an attorney at law in prosecuting one Schnider in justice’s court and, on appeal, in the circuit court, for an alleged violation of an ordinance of the defendant. See Schnider v. Montross, 158 Mich. 263 (122 N. W. 534). Plaintiff was employed by the president of the village with the consent of a majority of the trustees, but without any formal action of the council. After the trial in justice’s court, which resulted in a conviction, plaintiff sent in his bill, which the council did not allow. After the trial in the circuit court, which resulted in the acquittal of the respondent, plaintiff' sent in his bill for the-entire service, which was disallowed.

Appellant contended in the lower court that, as there was no official employment of plaintiff by the council, he could not recover. Plaintiff contended that if the jury should find, as the evidence tended to show, that all the members of the council knew of plaintiff’s employment by the president, that he was performing the services, relying.upon the village paying for them, and gave him no notice that they would not recognize such services as creating any obligation on the part of the village, the village would be estopped to question its liability. The case was submitted to the jury on plaintiff’s theory, and a verdict returned for plaintiff. Defendant brings the case to this court for review upon writ of error.

We do not deem it necessary to discuss the various assignments of error, since, in the view we take of the case, the plaintiff was entitled to an instructed verdict. Section 2727, 1 Comp. Laws, makes it the duty of the president to “see that the laws relating to the village and the ordinances and regulations of the council are enforced.” Section 2Z61 provides that prosecutions for violations of ordinances may be commenced by warrant, and that the proceedings thereon shall be substantially the same as in criminal cases. In view of the serious effect of such proceedings upon the accused, his right to a speedy trial, the necessity for legal advice upon the part of the president to enable him to discharge his duty, and of the employment of a lawyer to conduct the prosecution, we are of the opinion that, in the absence of any action on the part of the council providing for such employment, the section quoted confers upon the president the required authority. See People v. Vinton, 82 Mich. 39 (46 N. W. 31).

The judgment is affirmed.

Bird, C. J., and Ostrander, Moore, and Brooke, JJ., concurred.


text:
    PEOPLE, for use of WIPFLER, v. FIDELITY & DEPOSIT CO. OF MARYLAND.
    1. Process — Foreign Bonding Companies — Venue—Jurisdiction —Courts—Servios of Process.
    An action of assumpsit against a foreign corporation, as surety upon the bond of a receiver, may he instituted in the county of plaintiffs residence, and service obtained in another county in which an agent for service of process, appointed under 2 Comp. Laws, § 5198, resides.

      2. Same — Joint Defendants — Process.
    The validity of service of such process is not affected by the joinder in the action of another defendant upon whom no service of process is obtained.
    ' 3. Same — Statutes.
    Act No. 321, Pub. Acts 1907, does not change the effect of the statute requiring such appointment, since the amendment refers only to bonds of liquor dealers.
    4. Same — Title of Aot — Constitutional Law.
    2 Comp. Laws, § 5198, is sufficiently entitled to indicate the purpose of the statute, which is not to change the jurisdiction of the courts, but to impose conditions upon.foreign surety companies doing business in Michigan.
    5. Same — Service of Process.
    Such corporation may consent to the acceptance of service in a State where it is transacting business, and in which it is not a resident or citizen.
    Certiorari to Jackson; Parkinson, J.
    Submitted July 15, 1910.
    (Docket No. 165.)
    Decided September 28, 1910.
    Assumpsit by the people of the State of Michigan, for the use and benefit of Lucy Wipfler, against Charles W. Wipfler and the Fidelity & Deposit Company of Maryland on a receiver’s bond. An order overruling a motion to quash the service of process upon defendant company is reviewed by it on writ of certiorari.
    Affirmed.

      Grove H. Wolcott, for plaintiff.

      Brennan, Donnelly & Van De Mark, for defendant company.
   Stone, J.

Lucy Wipfler, a resident of the county of Jackson, brought suit in assumpsit in the circuit court for that county against Charles W. Wipfler and the Fidelity & Deposit Company of Maryland, a foreign corporation, which is engaged in doing a bonding and surety business in this State. The return of the circuit judge shows that the suit was begun by the filing of a declaration, with rule to plead, on March 31, 1910. No service was had upon defendant Charles W. Wipfler. Upon the same day that declaration was filed, a copy thereof, with notice of the rule to plead indorsed thereon, was served upon Charles Whitaker, attorney in this State for the Fidelity & Deposit Company of Maryland, for service of process.. This service took place in Wayne county. On April 14, 1910, the defendant the Fidelity Sc Deposit Company of Maryland filed a special appearance for the purpose of making a motion to quash and hold for naught the service of the declaration upon it upon the grounds:

(1) That the agent upon whom the service was made was a resident of W ayne county, and the service of the declaration was made in Wayne county.
(2) That the defendant Wipfler was not a resident of Jackson county.

The motion was denied, and the case is here upon a writ of certiorari obtained by the Fidelity Sc Deposit Company of Maryland to review the action of the circuit court in overruling its motion to quash the service of said declaration.

The question is squarely presented whether the service •of a copy of the declaration upon the attorney for the Fidelity Sc Deposit Company of Maryland, in Wayne county, is valid service, no service having been obtained -upon the other joint defendant in Jackson county, nor, in fact, anywhere. The plaintiff seems to rely upon the last clause of section 5198, 2 Comp. Laws, and the appointment of attorney filed with the commissioner of insurance by the Fidelity Sc Deposit Company of Maryland. The clause of the statute referred to reads as follows:

“And if such company be organized under the laws of any other State than this State, it * * * must appoint an attorney in this State on whom process of law can be served, and file in the office of the insurance commissioner a written statement duly signed and sealed, certifying such appointment, and which shall continue until another attorney is substituted.”

It will be noted that this language is very broad and general. The company must appoint an attorney in this State on whom all process of law can be served, because there is no limitation. The written appointment filed by said defendant pursuant to the statute is as follows:

Know All Men by These Presents: That the Fidelity & Deposit Company of Maryland, Surety Company of the City of Baltimore, in the State of Maryland, having been admitted, or having applied for admission to transact the business of surety insurance in the State of Michigan, in conformity with the laws thereof, does hereby make, constitute and appoint Charles Whitaker, Esq., of the city of Detroit, county of Wayne, its true and lawful attorney, in and for the State of Michigan, on whom all process of law, whether mesne or final against said insurance company, may be served in any action or special proceeding against said company in the State of Michigan, subject to and in accordance with all the provisions of the statutes and laws of said State of Michigan now in force; and such other acts as may be hereafter passed amendatory thereof and supplementary thereto. And the said attorney is hereby duly authorized and empowered, as the agent of said company, to receive and accept service of process in all cases as provided for by the laws of the State of Michigan, and such service shall be deemed valid personal service upon said company. This appointment is to continue in force for the period of time and in the manner provided by the statutes of the State of Michigan, and until another attorney shall be duly and regularly substituted.
“ The said company further stipulates and agrees that any legal process affecting such company, served on the commissioner of insurance of the State of Michigan, or his deputy, shall have the same effect as if personally served on the company or its authorized attorney in said State of Michigan. The said company stipulates that when process against or affecting it, is served on the commissioner of insurance, or his deputy, a copy of such process shall be mailed to the Home Office, Baltimore, Maryland.”

This instrument bears date February 16, 1903.

Our attention has been called to Act No. 321, Pub. Acts 1907, amending section 5196, 2 Oomp. Laws, and the question has been suggested whether this act in anyway affects the provision of section 5198, above quoted. In our opinion it does not. We agree with defendants* attorneys when they say in their brief:

“Under the original act liquor bonds could not be executed by surety companies. The main intention of the amendatory act was to provide for the execution of these bonds, and to permit the same to be executed by corporations organized under the laws of our State. This object was accomplished by adding a number of provisos to section one of the original act. As this section now stands, it contains six provisos. The first proviso forbids the acceptance of a surety company as surety for the appearance of any person charged with crime. The second, third, fourth, and fifth provisos all deal with the subject of liquor bonds. Immediately following comes proviso sixth,” which is as follows:
Provided, further, That suits may be commenced in the circuit court in any county where the plaintiff resides, by declaration or writ, and service shall be made in such cases only upon the commissioner of insurance in like manner and with like effect as is provided for the service of process upon societies, orders or associations organized under the laws of any other State, Province or Territory, and doing business in this State, and not having its principal office within this State, and for the purpose of service of process as herein provided such surety company shall appoint in writing the commissioner of insurance, or his successor in office, to be its true and lawful attorney.”

It is reasonable to suppose that this refers to cases upon that class of bonds referred to in the preceding provisos. It seems to refer to service of process upon a domestic corporation, for it provides that such service shall be with, “like effect as is provided for the service of process upon societies, orders, or associations organized under the laws of any other State, Province or Territory, and doing business in this State,’* etc. The entire purpose of the amendatory act seems to have been to provide for the execution of liquor bonds by domestic corporations, and proceedings in case of suit thereon. In our opinion the provision in. section 8, being section 5198, 2 Comp. Laws, above quoted, stands unrepealed and unaffected by tbe amendment of 1907. It relates to foreign companies doing business in this State. It is said that the precise question here presented has not been before this court. Counsel for both parties have called our attention to Smith v. Assurance Society, 159 Mich. 167 (123 N. W. 588). There the plaintiff, a resident of Manistee county, brought an action in the Wayne circuit court against a foreign insurance company, and the suit was dismissed upon the ground that the court did not have jurisdiction. In an opinion affirming the action of the circuit court, Justice Montgomery, after referring to section 10015 et seq., 3 Comp. Laws, relating to foreign insurance companies, said:

“The question presented is whether this statute is a modification of the rule of law previously existing, to the extent that it authorizes the bringing of a suit in any county in the State if service of process be had upon the commissioner. We do not so construe the statute. The general rule and statutes relating to service of process fix jurisdiction, and undoubtedly the action might be brought in the county of the plaintiff’s residence, or in any county where service might be had upon a duly authorized agent of the defendant. But this statute is designed to avoid the necessity of such service, but was not intended to change the jurisdiction, and to confer it upon any court in the State.”

Had the suit been brought in Manistee county circuit court, we think a different conclusion would have been reached.

It is urged by counsel for the defendants that there is nothing in the title of the act relating to surety companies to indicate that it was the intention of the legislature to change the general rule which fixes the jurisdiction of our various circuit courts to try causes, nor to institute and authorize a new manner of service which would enlarge the jurisdiction of such courts, and give them power to entertain causes which previously could not have been brought before them. We think that it may be said that the act by its title and provisions states the terms and conditions upon which surety companies will be accepted, and the conditions and qualifications upon which they will be permitted to do business in the State, and among them is the appointment of an attorney to accept service of process. It is not an act affecting the general jurisdiction of the courts. It is rather a provision that the companies coming into the State and doing business there may consent to service of process in the mode prescribed, and, when they designate persons upon whom process may be served, they thereby consent to the mode, and waive the general provisions relating to service. In Ex parte Schollenberger, 96 U. S. 369, it was said:

“A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located, by or under the authority of its charter ; but it may, by its agents, transact business anywhere, unless prohibited by its charter, or excluded by local laws. Under such circumstances it seems clear that it may, for the purpose of securing business, consent to be ‘ found ’ away from home, for the purposes of a suit, as to matters growing out of its transactions. The act of congress prescribing the place whero a person may be sued, is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented. Here the defendant companies have provided that they can be found in a district other than that in which they reside, if a particular mode of proceeding is adopted, and they have been so found. In our opinion, therefore, the circuit court has jurisdiction of the causes, and should proceed to hear and decide them.”

See, also, Gray v. Quicksilver Mining Co., 21 Fed. 288, and cases cited; Cofrode v. Wayne Circuit Judge, 79 Mich. 332 (44 N. W. 623, 7 L. R. A. 511). The suit was brought where it could be tried — in the county of the plaintiff’s residence. Section 10216, 3 Comp. Laws; Haywood v. Johnson, 41 Mich. 604 (2 N. W. 926). To hold with the contention of the defendant is to decide that all suits against this defendant must be brought either in the county of. Wayne or Ingham. We think that the understanding of the profession has been that such a suit as this is, and suits generally against foreign insurance companies, may be brought in the county where the plaintiff resides, and that service may be had either upon the commissioner of insurance or the attorney appointed, at the option of the plaintiff. We do not think that section 10010, 3 Comp. Laws, has any application here. Under the provisions of section 10371, 3 Comp. Laws, where one joint defendant has not been served with process, judgment may be rendered in form against both, and the three following sections provide for execution and proceedings thereon. We think that the defendant corporation has voluntarily submitted itself to the jurisdiction of the courts of this State under the act of the legislature cited, by its compliance with the terms thereof, and that the plaintiff had a right to begin suit in the county of her residence, and serve process either upon Mr. Whitaker or the commissioner of insurance or his deputy.

We think that the circuit judge reached the correct conclusion, and his order overruling the motion is affirmed.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.