author: Mooee, C. J.

text:
    CITY OF DETROIT v. C. H. LITTLE CO.
    1. Saving Questions for Review — Objections not Made at Trial.
    On error to review proceedings for the assessment of damages caused by a change of the grade of certain streets in the abolition of railroad grade crossings, grounds of objection to the right of a claimant to recover damages, not suggested at the trial, will not be considered.
    2. Eminent Domain — Grade Crossing — Separation of Grades —Damages—Leaseholds.
    A tenant’s term is “ property ” for injury to which he is entitled to compensation under sections 4229 et seq., 2 Comp. Laws, providing for the separation of highway and railroad grades. “ •
    3. Same — Release of Damages.
    Where a lessee from a railroad company of certain property, injured by the separation of grades in the abolition of railroad grade crossings, was not a party to an agreement between the city and the railroad company, by which the latter waived all damages to abutting property owned or controlled by it, the city was not thereby relieved from liability to the lessee for injuries to the leasehold.
    Error to the recorder’s court of Detroit; Phelan, J.
    Submitted October 12,1905.
    (Docket No. 46.)
    Decided November 7, 1905.
    Petition by the city of Detroit for the separation of grades and the abolition of grade crossings over certain railroads, in which the O. H. Little Company was permitted to intervene and claim damages to a leasehold. There was judgment for petitioner on a verdict directed by the court, and claimant brings error.
    Reversed.

      Willard E. Warner, for appellant.
    P. J. M. Hally (T. E. Tarsney, of counsel), for appellee.
   Mooee, C. J.

Several years prior to August, 1903, the C. H. Little Company established a yard on the south side of Michigan avenue, in Detroit, at the crossing with the Lake Shore & Michigan Southern Railroad, where it dealt in sand, lime, mortar, stone, and other building and paving materials. It maintained the yard several years, and had erected a large warehouse and stables, put in a set of 10-ton platform scales, and had other utilities for the conduct of its business. It occupied the premises under a lease from the Lake Shore & Michigan Southern Railway Company, which lease contained a clause for its renewal from year to year; the last renewal being for one year from April 19, 1903. For the purpose of separating the grades upon certain streets in Detroit, the city entered into an agreement, the material portions of which are as follows:

“Agreement made this third day of July, 1903, between the city of Detroit, party of the first part, and the Michigan Central Railroad Company, the Lake Shore & Michigan Southern Railway Company and the Grand Trunk Railway Company, of Canada, hereinafter called the ‘Railroad Companies,’ and the Detroit United Railway Company, hereinafter called the ‘Street Railway Company,’ parties of the second part, witnesseth:
‘ ‘ Whereas, the city desires to discontinue, as soon as may be reasonably practicable, the grade crossings in the said city of Detroit at the intersections of the several streets, in the district between Woodward and Michigan avenues, inclusive, with the rights of way owned, used or occupied by the said railroad companies, and to substitute therefor overhead crossings by said railroads, and the parties thereto, by their duly authorized representatives, have agreed upon a uniform profile, fixing the level to which the tracks of the said railroad companies shall be elevated, to provide for the separation of grades of the several streets, and have reached an argreement determining the method, the terms, and the conditions of, and general specifications for, effecting such changes in said crossings, and in furtherance of such general arrangements have now agreed upon the particular plans and specifications therefor, * * * at the crossing of the tracks of the said Lake Shore & Michigan Southern Railway Company and Grand Trunk Railway of Canada:
“Now therefore, in consideration of the premises and the mutual undertakings of the parties hereinafter expressed, it is agreed:
“1. That the city of Detroit shall, by proper ordinance, adopt the line shown on the profile, as the profile permanently fixing the levels for said district, to provide for the separation of the grades of the streets at present opened and used, within the limits, of said district, and the city hereby covenants and agrees that the separation of grades at all street crossings in said district shall be effected hereafter by lowering the grade of the streets sufficiently to allow the streets to pass under the railroad tracks when so elevated.
“ 2. That the city shall, from time to time, by proper ordinances, whenever required for the separation of grades, change and lower the grades of the several streets now opened and used across said right of way, so as to permit the separation of grades in accordance with said profile and shall thereby authorize the construction of the said railroads overhead across such new grades, and shall, and does hereby, assume the payment of all abuttal damages, to property or persons, other than said second parties, arising in any way from such change of grade, and all cost, expense, charges, or liability in any proceedings which may be instituted to effect such separation or which may be instituted to prevent the performance of this agreement, it being understood that the performance on their part of this contract shall release and discharge said railroad companies from any and all assessments, charges, damages, or liabilities and be accepted as a full discharge and acquittal of all obligations, present or future, to abutting owners, or arising from the failure of the city to adjust or pay such damages, costs and expenses in connection with such grade separation and changes of grade, and the city hereby assumes to itself and agrees to pay and assume and indemnify and save harmless the said second parties from and against all such assessments, damages, costs or expenses, except for construction, without charge, recourse to, or recharge over against said second parties, or any of them, and the parties of the second part hereby waive any and all claim for damage by reason of the change of grade of any of said streets to any .abutting property owned or controlled by them, or any of them.
“3. In consideration thereof, the second parties shall construct and build the entire work involved in said changes of grade and all excavating, paving, and repaving, etc. The work to be done by said second parties shall include all excavations necessary or made necessary by the said change of grade as well on the intersecting streets as on the streets crossed. All such work to be done in accordance with the said profile and the general specifications. * * *
“11. The city shall, as soon as practicable, by proper ordinance, change the grade of said Michigan avenue at said crossing, and the said city shall and does agree to assume and perform, with respect to the work of the separation of grades, all of the undertakings and obligations hereinbefore mentioned, to be kept and performed by said city.”

In August, 1903, the separation of grades work began, at which time the buildings, scales, and utilities of the appellant were removed to the north of said Michigan avenue, and its yard abandoned, owing to the deep excavations in said avenue and the loss of ingress and egress to and from said yard.

The C. EL Little Company sought to recover damages because of the change of grade. The city claimed that as the C. H. Little Company’s yard and business were on railroad property that because of the agreement of the railroads with the city the claimant could not recover. The claimant sought to show its damages, when objection was made to his introducing testimony. The following then occurred:

‘1 Mr. Warner: I have a small claim here, and would not want to have all the testimony in the case written up to appeal this claim.
“Mr. Hall: You have your right to appeal. You have but about three pages of record for your claim. You can take it up on your offer.
“The Court: I think I will do that. I think I will allow Mr. Warner to offer it and I will exclude it. I don’t think it a proper element, in view of the agreement between the company and the city.
‘ ‘ Mr. Warner: I offer to show our damages, expecting to show with reference to the damage of the C. H. Little Company.
The Court: I suggest, Mr. Warner, you make that offer in the form of a typewritten statement and submit it as a part of the record and save time, and you can make it more accurately.
“Mr. Hall: Then I object to that testimony.
The Court: He offers to show, I understand, that the damage to his client amounts to $1,807.40, by reason of the construction of the grade.
“Mr. Hall: I admit that they would show items of damage to that amount.
“Mr. Warner: Do I understand that you admit the claim of the C. H. Little Company for its damages by that separation matter amounts to that sum of $1,807.40 ?
Mr. Hall: Well, I admit that the testimony of the claimant’s witnesses will show its damage to be that amount.
‘ ‘ Mr. Warner: Then I will rest under that admission as to the amount of this claimant’s damage.
“Mr. Hall: The record should also show that they moved, prior to the separation of grades, over to the identical property upon the opposite side of the street belonging to the railroad company.
“Mr. Warner: The total element of damage is entirely caused by the removal. It makes no difference whether they were moved from the railroad property to another piece of railroad property or elsewhere.
‘ ‘ Mr. Hall: Then you admit that, don’t you ?
Mr. Warner: That is a fact that they did, but that has nothing to do with it in mitigation of damages.”

•Acting upon the suggestion of the judge, an offer in writing was filed and is incorporated in the bill of exceptions, containing, among other things, the following:

That its damage consisted of the cost of removal of its buildings consisting of a warehouse and stables adjacent thereto, being about 24 feet by 140 feet in dimensions, and the removal of its platform ten-ton scales; the cost of necessary changes to said buildings and scales to accommodate them to its new location; the cost and wages of extra help during the period of such removal; the damage to said buildings by reason of such removal; and the loss of time and the value thereof to its teams, wagons, and men during the period covered by the actual work incident to the said separation improvements, it eliminating any and all claims for loss of profits to its said business suffered by reason of its interruptions by said, improvements, the same being, in this instance, incapable of calculation.”

The judge directed a verdict for the city. The case is brought here by writ of error.

It is the claim of the appellant that it was entitled to recover damages for whatever injury was done it, and that under the proofs and the admission made in the lower court a judgment should be entered here for $1,807.40. Counsel for the city say:

“ Appellant is not entitled to the relief sought for, for the following reasons:
“1. Before the work of the separation of grades commenced the appellant company voluntarily abandoned the property abutting the improvement.
“2. The damages now asked for it would itself have been compelled to pay at the termination of its lease eight months from the date of its removal.
“3. Appellant occupied land belonging to one of the railroads, and by an agreement with the city of Detroit the railroad expressly waived all damages suffered by it on any property owned or controlled by it, and the statute does not give the right to recover under those circumstances.
“4. In any event the elements of damage submitted are not the elements which go to make up the value of a ‘ term ’ in the event of the eviction of a tenant.”

As to the first, second, and fourth of these propositions, it may be said that they were not suggested upon the trial below. Had they been, it is likely we would have a different record here.

Is the claim of the city that the appellant is not entitled to damages well taken ? It has been repeatedly held that a tenant’s term is property. See Allison v. Chandler, 11 Mich. 542, and the cases there cited. These proceedings were brought under section 4229 and succeeding sections of the Compiled Laws. Section 4239 provides for the filing of the petition for the purpose of the separation of grades, “and for making just compensation to all parties sustaining damage thereby,” and the petition shall contain the names “of all persons interested as mortgagees, lessees or otherwise in the properties of such companies of the owners and others interested in the property, * * * including those in possession of the premises.” The petition shall ask that a jury be summoned to ascertain the necessity, etc., and “to ascertain and determine the just compensation to be made * * * to the persons interested in said abutting property.” Section 4244 provides that the jury shall ascertain, and determine the amount of damages to such property “as may be damaged thereby, * * * and shall award to the parties interested compensation for such damages. * * * And the said jury shall assess in their said verdict the total compensation by them awarded for damages for such property as may be damaged by such improvements to the parties interested therein.” The language of the statute is sufficiently broad to take care of the interests of the appellant company. See, also, section 2, art. 18; section 14, art. 18; section 9, art. 15 — of the State Constitution. The appellant was in possession under an existing lease. It was no party to the agreement between the city and the railroad companies. Its rights were not and could not be taken from it by the agreement entered into between them. The judge should have allowed the case to go to the jury. We do not think, however, the record presents the question of the amount of damages in such a way as to justify us in entering a judgment in this court.

Judgment is reversed; and new trial ordered.

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


source: Caselaw Access Project

author: Per CuriAm.

license: Public Domain

text:
    CULVER v. VAN BUREN CIRCUIT JUDGE.
    Bill or Exceptions — Settlement — Time—Extension—Stipulations.
    Any objection to an order extending the time for settlement of a bill of exceptions is waived by entering into a stipulation on the date the order is granted that the parties will, if possible, agree on a bill at an earlier date, and, if so agreed, the bill may be signed by the judge at the later date nunc pro tunc; and, the parties failing to agree, the judge acts within his rights in receiving the bill and its amendments on the date to which the time was extended and appointing a time for final settlement.
    Mandamus by William Culver to compel John R. Carr, circuit judge of Van Burén county, to set aside an order extending the time for settling a bill of exceptions.
    Submitted October 17, 1905.
    (Calendar No. 21,339.)
    Writ denied November 7, 1905.

      T. J. Cavanaugh and L. A. Tabor, for relator.

      W. J. Barnard (Edward Maher, of counsel), for respondent.
   Per CuriAm.

Relator asks for a mandamus to vacate certain orders extending th9 time for settling a bill of exceptions in a case wherein relator, as plaintiff, recovered a judgment in the circuit court for Van Burén county, and to hold such bill of exceptions settled and signed in said cause a nullity.

The first order complained of was made July 3, 1905, by the court in Cass county, extending the time to September 1, 1905. On the same day the parties, by their attorneys, entered into a written stipulation setting forth, among other things, that they would, if possible, agree upon a bill of exceptions at Paw Paw, Van Burén county, before July 25, 1905, and that it might be signed by respondent September 1st, nunc pro tunc as of July 29, 1905. No agreement was arrived at, and on September 1st the bill of exceptions was presented to respondent for settlement ; the attorneys for both parties being present. Counsel for relator objected to any action being taken, but proposed a large number of amendments, which were allowed by respondent and ordered to be embodied in the bill of exceptions, and all to be made ready for his signature at Paw Paw on September 5, 1905, to which time the matter was extended, and on that date he finally settled and signed the bills of exceptions as of July 29, 1905, according to the terms of the stipulation. Whatever valid objection, if any, there may have been to the order made July 3d, was waived by the stipulation. The parties to the stipulation understood that, if the bill of exceptions could not be agreed upon, some time would be required by the trial judge to examine the voluminous record, and to pass upon the amendments and determine the controversy according to the facts. Respondent did no more than this, and was within his rights under the rule in appointing the time and place where he finally settled and signed the bill of exceptions.

The writ is denied, with costs.


author: Hooker, J.

text:
    BERLIN v. BELLE ISLE SCENIC RAILWAY CO.
    1. Corporations — Acts op Agents — Contracts—Breach.
    Where, at the time plaintiff rented a cigar privilege from the agent of defendant amusement company and paid his first month’s rent, the agent notified him that he had no authority to make the lease, except on approval of defendant’s board of directors, but stated that if plaintiff did not hear from the matter by a certain time that day he should understand that the arrangement would stand, plaintiff was not entitled to recover for breach of contract, consisting in defendant’s leasing the privilege to another, though plaintiff was not notified of any adverse action by defendant’s board of directors.

      2. Appeal and Error — Issues—Review.
    Alleged error in withdrawing the question of tender from the jury will not be reviewed, where it affects only the question of interest, which was not made an issue in the case.
    Error to Wayne; Frazer, J.
    Submitted October 17, 1905.
    (Docket No. 66.)
    Decided November 7, 1905.
    Assumpsit by William Berlin against the Belle Isle Scenic Railway Company for breach of a contract to lease. There was judgment for plaintiff for less than the amount claimed, and he brings error.
    Affirmed.

      Adolph Sloman {Edmund M. Sloman, of counsel), for appellant.

      May, Denby & O’Brien, for appellee.
   Hooker, J.

The defendants were constructing a scenic railway close to Belle Isle bridge, in Detroit. Negotiations were had between the plaintiff and one Walters, who was the employé of the defendant and manager of its business, in relation to leasing from the defendant the privilege of selling cigars, etc., during the summer upon its premises at the price of $40 a month. A sum equal to the first month’s rent was paid to Walters, who gave a receipt for it, of which the following is a copy:

“ $40. Detroit, Michigan, May 7th, 1902.
“ Received of William Berlin, $40 rent in full for cigar stand; also newspapers, periodicals, tobacco, etc. Rent paid in full from May 24th to June 24th. Scenic Park, Detroit, Michigan.
“Belle Isle Scenic Ry. Co., “Robert Walters,
“General Manager.”

Walters and the plaintiff disagree regarding the transaction, but there was testimony that Walters told the plaintiff that he would lay the matter before the board of directors, and, if they had any objection, he would inform plaintiff; and that, if he did not hear from him by 1 o’clock of the same day, he should understand that the arrangement was to stand. Plaintiff heard nothing to the contrary, and supposed that he was to have the booth, but found out later that it was rented to another. There is some testimony to the effect that Walters offered the money in advance to the plaintiff, who refused to accept it. This action was brought to recover damages for an alleged breach of the contract, and plaintiff appeals from a verdict and judgment in his favor for $40.

The most important question relates to the authority of Walters to make the contract. The court charged the jury that:

“A person who deals with an agent of a corporation, or an agent of a firm or of an individual, is expected to know the authority which is conferred upon that agent, and if that agent, whoever he may be, acts outside of his authority, it is not binding upon the principal; the principal in this case being the Belle Isle Scenic Railway Company. * * *
“ If you give authority to an agent, anybody who deals with him deals with him at their peril, so that it would be unfair for you or me, or a corporation, or anybody else to hav4e that man make a contract that he had no right to make, and expect to bind us. A person dealing with an agent deals with him to the extent of his authority. If he goes any further, it is at his peril. This authority of the agent must be established to you by a preponderance of evidence; otherwise the plaintiff would not be entitled to recover in this suit.”

We need not consider the question of the accuracy of this charge, for we are agreed that the uncontradicted testimony shows that Walters had not the authority to make the contract alleged, and that the plaintiff knew that the action of the board of directors was necessary before he could obtain a lease. The court might with propriety have taken the question from the jury.

The court instructed the jury to render a verdict in favor of the plaintiff for $40, the amount advanced for rent, and a larger sum, if they should find that Walters had authority to make the contract. They returned a verdict for $40. Proof was offered to show a tender of the $40, and the testimony showed that Walters told the plaintiff he would pay it, but plaintiff said that he would not receive it, so Walters did not produce the money, although he had it with him. It is admitted that, if the court erred in allowing the question of tender to go to the jury, it would affect the question of interest only. No allusion appears to have been made to the question of interest, either by court or counsel, and the charge does not indicate that the question of interest was made a point in the case. Therefore it is not before us for review.

The judgment is affirmed.

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


text:
    HETRICK v. CROUCH.
    Assault and Battery — Action eor Damages — Evidence.
    Where, in. an action for assault and battery, defendant testified that he caused a criminal complaint to be made against himself for the battery, and pleaded guilty and paid a fine, and that, though plaintiff struck the first blow or blows, defendant continued the fight long after a necessity for self-defense ceased, and for the purpose of punishing plaintiff “ because he wanted to lick him,” plaintiff was entitled to recover at least nominal damages.
    Error to.Kalamazoo; Adams, J.
    Submitted October 18, 1905.
    (Docket No. 26.)
    Decided November 7, 1905.
    Trespass vi et armis by Alpheus G. Hetrick against William T. Crouch. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Howard & Howard, for appellant.

      Jesse B. Cropsey and Dallas Boudeman, for appellee.
   Hooker, J.

The plaintiff was defeated in an action for damages for injuries resulting from an assault and battery upon him. The defendant’s own testimony not only shows that he caused a criminal complaint to be made against himself for the battery, and that he pleaded guilty and paid a fine, but it also shows that, although the plaintiff called him a liar, and perhaps struck the first blow or blows, he, the defendant, continued the fight long after a necessity for self-defense ceased, and for the purpose of punishing the plaintiff, and “because he wanted to lick him.” It is unnecessary to quote the testimony. This being true, the court should have directed a verdict for the plaintiff, who was entitled to nominal damages, if no more. Some other questions are raised by the record, but the law applicable to cases of this kind is well settled, and we think it unnecessary to discuss them. It is urged that these are questions for the jury, excessive punishment not being admitted. The defendant admitted it in his testimony, beyond all question, which is a sufficient admission.

The judgment is reversed, and a new trial ordered.

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


text:
    SWEET v. DETROIT UNITED RAILWAY.
    Carriers — Street Railroads — Injuries to Passengers — Platforms — Crossings.
    Where there was a smooth path across a street, which was being paved, to the tracks of defendant street-railway company, except for a rail about which the pavement had not been laid, and plaintiff, with full knowledge of the situation, crossed the track to take a car at that point, and slipped and fell over such rail, the railroad company was not negligent in failing to build a platform or a crossing on a level with the rails to afford the public access to its cars.
    Error to Wayne; Hosmer, J.
    Submitted October 19, 1905.
    (Docket No. 64.)
    Decided November 7, 1905.
    Case by Hobart P. Sweet against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Lehmann & Riggs, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Hooker, J.

Michigan avenue, in Detroit, was being repaved. The south side, including one track of the defendant’s trolley line, was completed. The concrete foundation had been laid under its other track and the remainder of the roadway. So far as appears from the testimony, this concrete foundation was perfectly smooth, and was the width of a paving brick, and possibly a little more, below the top of the rails of the defendant’s track. There is nothing in the testimony to indicate that there was any debris or litter upon the concrete, except one little stone or pebble, which the plaintiff said that he stepped upon and which rolled under his foot. The defendant is in the habit of stopping its cars at a point midway between Lockwood avenue and Thirty-First street, which streets intersect Michigan avenue on opposite sides, but do not cross; the one stop being made to do service for both of said streets. The place is indicated to the public, as a stopping place for the car, by a small tin sign. The plaintiff had been in the habit of taking the car at this place for a number of months,.walking out to the car tracks and over them, so as to be on the proper side of the track, to take the east-bound car. He knew, as well as any one, the condition of the highway, and the necessity of stepping over the rail. On the occasion of his accident he had reached the track and attempted to step over the north rail. He testified that:

“ It was a pretty good day, but it had snowed a little in the morning — just about enough to cover the ground. I started to go across the track to get my car to come down town, and, as I stepped up to the rail to step over it, my foot slipped a little, and, of course, the natural consequence, any man would make a start to gather himself and not to fall, and as my foot came up to the side of the rail it caught under the flange and I went over head first, and fell between and upon the rails of the northerly track. The street was unpaved. I don’t know for certain how much of the T rail was above the surface. I should think 6 or 8 inches. The southerly track was paved, and the space between the two tracks was paved. It was all paved, except the one track where I fell. My right foot slipped and my left foot caught under the flange and threw me. I had stepped close to the rail before my right foot slipped, and when I slipped my right foot went a little sideways. It went to the rail. * * * Catching my toe under the rail is what caused me to fall. My left foot was the one that caught under. I had not stepped over either rail. Had not got either foot over. My right foot slipped against the northerly rail, and in trying to save myself my left foot threw me between the tracks. ”

And on cross-examination:

“It had snowed a little — just enough to know it had snowed.
Q. And this snow caused you to slip there ?
“A. Well, it was that — there was a little stone rolled under my foot at the same time that I stepped on, and there was snow, and I believe that little stone—
Q. You think it was the snow that caused you to slip ?
“A. Well, I wouldn’t lay it all to the snow.
Q. At any rate you slipped as you were about to step over the rail ?
“A. Yes; in fact, I slipped—
Q. And in fact you were just about picking your way over ?
“A. Yes, sir.
Q. You were so close that your foot, when you slipped, touched the rail ?
“A. Just went right up against the rail.”

Also:

“I went down to the street-railway office and made a statement. I forget whether I signed it or not. I don’t think I went down town for five weeks. I might be mistaken, but I don’t think I did. It might be two weeks after I was injured that I went down to the railroad office, but I don’t bear it in mind two weeks. If my signature is to it, why, of course, I was down there in two weeks. At that time I said: ‘ I slipped on account of snow; but, if the rails had not been there, I would not have been hurt when I fell.’ At that time I did not say anything about any other little thing that I stepped on. It was fresher in my mind then; that is all right.”

There was an electric light near by, the rail was visible, and he saw it in his attempt to step over it. Under the testimony given it was a clear case of slipping, or stubbing his toe, or both, and his counsel say in their brief that “he knew the ground pretty well, as he went over it every day, and would have got over it all right, if he had not made a misstep and caught his toe.” The learned circuit judge was of the opinion that no negligence upon the part of the defendant was shown, and so instructed the jury. Error is assigned upon this ruling by the plaintiff. The negligence alleged in the declaration is that the defendant did not ■ maintain temporary crossings and platforms or other safe means to enable people to take the cars at this station or abandon the station. The case, then, is resolved into the question whether it is the duty of the street-railway company to build platforms in the city streets while paving is going on or abandon stoppages at the usual places for passengers, and to furnish a crossing at its tracks. We may eliminate the question as to the platform, because the plaintiff was not injured for want of a platform. He was crossing the track when he slipped. The testimony indicates a smooth path, except for the rail, and the plaintiff, with full knowledge of the situation, was willing to cross the track and take the car at this point. We agree with the circuit judge that it was not negligent for the street railway to omit building a platform or a crossing on a level with the rails. The public is not entitled to such unusual care as is urged in this case. It was apparent to every one that the rail would Have to be stepped over, and it was reasonable that citizens should be asked to do so under the circumstances. Plaintiff knew the necessity, and acquiesced, but had the misfortune to fall down. It was a casualty, the consequences of which he must suffer, and of which there is no justice in asking others to bear the burden.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    SPEICHER v. THOMPSON.
    Contracts — Rescission—Fraud—Waiver.
    The right to rescind for fraud an exchange of property, by which complainants acquired the controlling interest in a corporation, is waived where, after learning of the indebtedness of the corporation which rendered it insolvent, and defendant’s denial of misrepresentation in regard thereto, complainants determined to go on with the business, believing they could make themselves whole, and ultimately distributed the corporation’s property to creditors.
    Appeal from Benzie; Chittenden, J.
    Submitted October 13, 1905.
    (Docket No. 103.)
    Decided November 7, 1905.
    Bill by Daniel J. Speicher and Samuel J. Speicher against William G. Thompson and David C. Thompson to rescind a contract for fraud. From a decree for complainants, defendants appeal.
    Reversed and bill dismissed without prejudice.

      Louisell & Nevius, for complainants.

      Patchin & Orotser, for defendants.
   Ostrander, J.

Complainants, brothers, exchanged a quantity of land situated in Benzie county, Mich., for 104 shares of the capital stock of the Thompson Milling Company, an Indiana corporation owning and operating a flouring mill at Wabash, Ipd. The par value of the shares was $100; the authorized capital stock, $25,000. Only 200 shares of stock had been issued, of which defendants owned or otherwise secured and transferred to complainants the number of shares above stated. An agreement having been arrived at, the parties on November 6, 1902, reduced the same to writing, and executed and acknowledged the written contract. The following is a copy of the written agreement:

“ Memoranda of an agreement made and entered into by and between W. G. Thompson and D. C. Thompson, parties of the first part, and D. J. Speicher and S. J. Speicher, parties of the second part, all of the county of Wabash, in the State of Indiana, this sixth day of November, 1902, witnesseth:
“ That the said parties of the first part have this day sold to the said parties of the second part 104 shares of the capital stock of the Thompson Milling Company, a corporation duly organized under the laws of the State of Indiana, at and for the following price and property, to wit: Said parties of the second part agree to convey to the said parties of the first part, by good and sufficient warranty deed, except a mortgage of $800 executed by Jacob Shenkle, to Case and Kratzer on or about the 28th day of June, 1902, which the said parties of the first part agree as a part of the purchase money to pay, seven hundred and fifty acres of land in Benzie county, Michigan, and to deliver to said parties of the first part a team of mares and one wagon, and a set of harness, and to pay said parties of the first part the sum of six hundred dollars in cash.
“ The said second parties further agree to convey to the said parties of the first part about 8£ acres of land in said county and State, subject to a contract given in relation to same for the sale of a part of same, and with the agreement on the part of the said parties of the first part that they will perform the terms and conditions of the said agreement aforesaid in relation to said land, and will save the said parties of the second part harmless on account of the same. The land agreed to be conveyed is described in five deeds now in the hands of J. D. Connors, Jr.
Said parties of the first part are to have all of the standing and down timber upon said real estate. Said parties of the first part agree to bind themselves to turn over said capital stock free of all liens and incumbrances, and upon the representation which they agree to make good, that there are no liens or incumbrances against the real estate of the said The Thompson Milling Company, except a mortgage of the face value of $7,000 to the Building and Loan Association, a part of which has been paid. It is hereby agreed that the said parties of the second part are to become the owner of all the right, interest, and title of the said parties of the first part and of the interest of Carrie C. Thompson and Oma Morn, and all the property and assets of the said parties of the first part in said The Thompson. Milling Company. It is further agreed that the transfers of the said shares of the capital stock shall be completed on the seventh day of November, 1903, and in accordance with the constitution and by-laws of the said corporation, and by proper authority; and that they, said parties of the first part, will resign their office in said corporation and have the said parties of the second part substituted in their place as soon as said transfers of stock are made. Said parties of the second part agree to perform their part of this contract within the next five days, but will try to complete the same on the seventh day of November, 1902, and, if the said parties of1" the second part shall not be able to consummate this matter on the seventh inst., the said parties of the first part shall have the same length of time as is taken by the said second parties. The entire trade is to be consummated by both parties, and all papers changed and delivered on the same day. Each party takes the property he purchases of the other subject to the taxes of 1902.
“ It is hereby agreed by and between the parties of this contract, that if either party shall fail or refuse to fully perform all the terms and conditions of this contract, he shall, as liquidated damages, pay to the other party the sum of fifteen hundred dollars.
“ This agreement is made without any relief from valuation or appraisement laws.
“ In testimony whereof we have hereunto set our hands and seals the day and year first above written.
[Signed] “ W. G. Thompson.
“ D. C. Thompson. “D. J. Speicher.
“S. J. Speicher.
“State oe Indiana,] Wabash County. [
“ Before me, J. D. Connor, Jr., a notary public, within and for said county and State, this sixth day of November, 1902, personally appeared the above named W. Gr. Thompson, D. C. Thompson, D. J. Speicher and S. J. Speicher, and acknowledged the execution of the above and foregoing instrument.
“ Witness my hand and notarial seal.
[Signed] “ J. D. Connor, Jr.,
“ Notary Public.”

On November 7, 1902, the exchange was completed, and defendants’ positions as directors in the corporation were taken by the complainants, respectively. Thereafter complainants, as owners of a majority of stock, with the aid and assistance of the continuing secretary and treasurer of the company, managed the business, and defendants came to Michigan and took possession of the land.

On March 26, 1908, a bill of complaint, verified as of March 24, 1903, was filed in the Benzie county cii’cuit court in chancery, upon which, but on what day in March the record does not disclose, a preliminary injunction was granted and was issued, which injunction forbade defendants selling or incumbering the said real estate, or from cutting, selling, or removing timber therefrom. A demurrer to the bill was filed and overruled, and thereafter, on September 16, 1903, defendants filed their joint answer. The cause came on for hearing in open court in June, 1904, and on August 16, 1904, the decree was entered from which defendants have appealed to this court.

The theory of the bill is that defendants obtained the real estate and other property of complainants by fraud and deceit and without consideration, the evil practices alleged consisting of representations and concealments of facts affecting the value of the shares of stock given to complainants; the stock being in fact worthless. A tender of the shares of stock to, and a refused demand for re-conveyance of the land and other property from, defendants are averred. The bill prays for a decree requiring the defendants to reconvey the lands and pay back a sum of money paid to them in the transaction. It is also prayed “that your orators may be decreed damages for the loss sustained by reason of the fraud and deceit herein referred to.” The decree does not find or support rescission of the contract and bargain. It does find that in the trade which was made a fraxid was accomplished; that the stock was “comparatively worthless; that, by reason of the false and fraudulent representations so made by said defendants to the complainants, the said complainants were defrauded thereby out of $5,478, over which this court in chancery has jurisdiction.” The decree proceeds to give judgment against the defendants for the amount above recited, and costs of suit, arid makes this sum a lien upon the said lands. It is further determined and decreed that, if the sum stated be not paid within 60 days after notice of the decree, “then the said transfer will be rescinded in full, and the entire transaction set aside and held for naught,” and the decree in such case operates in terms as a retransfer of the lands to complainants; the complainants reassigning and transferring to defendants the said shares of stock. The injunction is made permanent.

The record, which is rather voluminous, has been examined with care. In the beginning complainants owned 769 acres of land, the title to which was in Samuel J. Speicher, subject to a mortgage upon some or all of it for $800. They had lived in Indiana all of their lives, and lived together. They bought the Michigan land in 1901. In the summer of 1902, Daniel J. Speicher spent some five months in Benzie county, and did some work on 22 acres of the land which was under cultivation. At this time the land was listed for sale with a real estate broker, known to both complainants, residing at Wabash, Ind. In October, 1902, Daniel paid his brother a visit, saw the real estate broker, and from him received information of a possible trade with defendants. This broker had the defendants’ property, or the milling property, for sale, and brought the parties together on or about October 23, 1902. Complainants, to the broker, represented their land as worth from $7,000 to $7,500. With the agent, Daniel looked over the property of the milling company, met defendants, or one of them, had some general conversation, and returned to Michigan. One of the defendants came to Michigan on October 29th to look over the lands of complainants, returning October 30th, but saying nothing about what he thought of the lands. Daniel was on November 3d summoned to Indiana by the real estate broker, and reached Wabash on November 5th, met the broker, went again to look over the property, and went again with his brother Samuel on the morning of November 6th. Later, on the same day, they went to the office of a lawyer, who prepared the memorandum of the agreement which they had made.

As to the various alleged false representations, and the fraudulent concealment of facts concerning the business, property, and indebtedness of the Thompson Milling Company, which it is charged defendants are guilty of, and as to complainants’ actual knowledge of conditions, there is ■conflicting testimony, rather evenly balanced as to number of witnesses, their apparent character and standing, and as to the support given to the general theory and claim of each of the parties by such evidence as is undisputed. Considerable important testimony is in the form of depositions. It will profit no one to rehearse or to compare the testimony. The impression gained from reading the record is not one which is entirely favorable to complainants. There is some evidence that complainants interpreted the contract to mean what it did not mean with respect to the force and effect of the words, “ free of all liens and incumbrances, and upon the representation which they agree to make good,” etc. This evidence is found in part in the letter of December 8, 1903, written by complainants to defendants, hereinafter referred to. Neither party, however, proposes any theory or claim'of rights based upon such a view of the testimony. If the complainants are truthful, the defendants represented to them that the Thompson Milling Company owed no debts, except a mortgage upon the real estate, $390 accounts payable, and certain demands to persons who had stored or left wheat and received certificates therefor. Defendants, also, in exhibiting the books of the concern, and in remarks and statements calculated to prevent inquiry, concealed the fact of a considerable indebtedness evidenced by bills payable made by the company. There are other frauds charged, such as misrepresenting the capacity of the mill, the amount of wheat on hand, and the value in wheat of certificates outstanding; but the considerable fraud, resting upon facts concealed from complainants, which it is asserted rendered the stock worthless, and later caused suspension of business and liquidation, consisted of the deceit practiced about the debts of the concern. It is undisputed that there were outstanding, at the time the trade was made, a note for $1,000, dated July 14,1902, due in 60 days; anote for $1,500, dated July 7, 1902, due in 90 days; a note for $1,300, dated April 10, 1902 — upon which some $600 had been paid, all of them given by the Thompson Milling Company, and all of them signed, also, by one of the defendants. There were other notes outstanding, and an overdraft at the bank. When the note first above mentioned was presented on December 1, 1902, it was paid. When the second above-mentioned note was presented November 18, 1902, it was renewed and the renewal indorsed by one of the complainants. Correspondence followed, which is here set out:'

“Wabash, Indiana, December 8 th, 1902.
“Messrs. William and David Thompson.
“Dear Sirs: You will notice in our contract that you agreed to turn over to me your interest or 104 shares of the capital stock of the Thompson Milling Company free from all liens and incumbrances, and to make settlement for same as they appear. The Citizens’ Bank has presented their note of fifteen hundred dollars, Mr. Bruner his note of one thousand dollars, Frank Bolander nine hundred dollars, Miss Ella Elliott her note of $325, interest collectible.
“ I asked you in regard to this matter if the same was free from all such claims, and you both said it was, and upon this ground we expect to demand our claims. You know well I can’t afford to let this matter pass unsettled. If you had given in these claims, it would have saved you this difficulty and me very much trouble. There is no record of these claims kept, and the mill, under its conditions, must speak by its records. Please attend to the matter at once. Our interests are affected to the amount of $3,068 and interest. Let us hear from you at once.
“Yours truly,
“D. J. and S. J. Speicher.”
“Pratts, Mich., Dec. 15, 1903.
“Messrs. D. J. and S. J. Speicher.
Gentlemen: Yours of December 7th was quite a surprise to us, both in the matter of your claimed ignorance of these notes against the Thompson Milling Co., and in your not seeming to appreciate the difference between ordinary notes and liens and mortgages.
“ Now, it is a fact that you did know of the Citizens’ Bank note from Mr. Hill himself, and from us also, and you did know of the Bolander note, as we together told you. You also did know of the existence of the other claims, as we told you that the indebtedness would be more than the wheat and flour on hand and the book accounts, and we also told you that, if you wanted an exact statement of the condition of the Thompson Milling Co., you could get it of the secretary of the Co., or we would invoice, if you desired.
“ Now, in regard to the contract will say, if you examine, you will see that it explicitly states that we agreed to turn over 104 shares of the stock free from liens or any incumbrances, which we did, as there isn’t now, nor ever has been, any of these shares mortgaged or incumbered; and, further, you will remember that I explained our position. We stated that, if we sold our shares to you, we stepped out and you stepped in, and the assets and liabilities still remained with the T. M. Co.
“Hoping you will see the situation as we fully explained it before we started, and as it really is, and that you may have a prosperous new year, we are,
“ Respectfully yours,
“ W. G. and D. C. Thompson.”

The parties had no other communication with each other until this suit was begun. Meantime, as detailed in the testimony of one of the complainants, the property of the Thompson Milling Company was attempted to be managed and business carried on. The mill was a steam mill, and was, for some of this period, idle for want of fuel. Finally the property was, by action of its officers, placed in the hánds of a receiver or assignee, its affairs •wound up, and a dividend of 74 or 75 cents paid upon each dollar of indebtedness.

“ The demands on us were being made so strong and heavy that it was almost like a rush on a bank, and there was no money wherewith to pay, and the directors had called a meeting,, and the directors discussed this matter pro and con and determined that was the best thing to do, and it was finally agreed upon by all of the directors present that we make an assignment to avoid litigation. Notice of litigation had already been given for the payment of a debt which a party claimed, and many threats for the payment of claims, if they were not immediately paid. And with all of this in view, to save the credit of the company, if possible, and to save the assets of the company from being eaten up by litigation, the directors, with other advice, deemed it best to pursue this course, so we made an assignment — the company did.”

Daniel J. Speicher also testified as follows:

“Q. State whether, if at the time the assignment was made, you still thought there would be equity enough in there so the stockholders could receive some benefit from the proceeds of this company ?
“A. Yes, sir; the directors thought that, by putting this into the hands of a trustee, we could avoid litigation and the business might be operated. I had counseled with Mr. Plummer, and he gave us legal counsel in the matter, and he advised these proceedings. He is judge of our circuit court there.
11Q. Now, after these debts and claims were all filed against the company, was there assets sufficient to pay them ?
“A. No, sir. * * *
“Q. State why, after learning of this indebtedness, you didn’t then immediately proceed to take some action against the Thompsons to set aside the contract you had entered into at that time ?
“A. Well, a short time after we had discovered the great amount of indebtedness, we saw that we had nothing to give them, that all the assets would be eaten up by the indebtedness.
“Q. State, if you know, what amount was paid on the claims.
“A. Seventy-four cents and something on the dollar.
Q. Well, but before making the assignment, why didn’t you take proceedings to set aside the relations that existed between you and the Thompsons by some process of law ?
“A. Well, we were advised by counsel that the facts set forth in the contract — that we would have to overrule the contract by evidence that all the facts were not set forth in thé contract.
“ Q. Well, did you have an idea that you would still get enough to make yourselves whole ?
“ A. Yes, sir; we thought by pursuing this course we might save something. Even if we could not save it all, we would be willing to sacrifice even one-half, rather than go into any lengthy litigation to recover.
Q. Well, when did you first know of the extent of the indebtedness of this company ?
“A. I think just a few days before I came up here and got out the injunction against the Thompsons.
Q. Well, as soon as you ascertained the true state of affairs of the Thompson Milling Company financially, did you then immediately proceed to take steps to have this contract set aside ?
“A. Yes, sir.
Q. That is, you commenced this action ?
“A. Yes, sir.
You followed your information by your action, did you ?
A. Yes, sir.
“Q. You say that claims were filed that showed an indebtedness of about $16,000. Do you remember just how much the indebtedness was shown to be ?
“A. Not to a dollar, but $16,300 and something.
“Q. How much of that indebtedness was incurred subsequent to your deal with the defendants in this action on the 6th of November, while you were running it?
“A. I think we had contracted debts to the amount of $1,100.
“Q. So at the time of the assignment there was $15,200 of that indebtedness that was outstanding against the company prior to your going'into the institution ?
“A. Yes, sir.
“Q. Now, after you went into the company, and became a member of it, and operated' this mill, how much of this indebtedness did you pay that had accrued against the company at that time ? How much of the old indebtedness did you pay ?
“A. We paid out old indebtedness some over $3,000.
“Q. Well, can you give it exactly ?
“A. Not without making some reference to it, but it was close to $3,300 anyway.
Q. So, approximately that would show that the company was owing $18,500, and you were apprised only of the mortgage of $7,000 on which they claimed to be $1,000 paid and $290 incidentals ?
“A. That is all.
Q. And that is all you supposed was owing by the company at that time ?
A. Yes, sir.
The Court: I understood you to say awhile ago something about some wheat certificates. Do they figure in this $18,000 ?
“A. Yes, sir.
“Mr. Warner: It all does, your honor.
Q. These figures here — this is the sum total of the whole business F
“A. Yes, sir.”

And on cross-examination he testified:

“ Q. Mr. Speicher, at this directors’meeting, December 24th, you say you talked over the best plan to save the property and to pay the creditors F
A. Yes, sir.
Q. You understood at that time that it was necessary to do something in order to save the company and save the company’s property ?
“A. Yes, sir.
Q. Therefore you had this meeting for the purpose of considering this proposition ?
“A. It was called for that express purpose.
“Q. And because you thought there was much danger that you might lose the whole plant, unless you took some decisive step ?
“A. It was called for the purpose of making some arrangement to take care of these debts, or else make an assignment; yes, sir.
“Q. Well, now, if the condition of this company at that time was in that shape, and you understood it and knew that the meeting was called for that purpose, why didn’t you then and there notify the Thompsons of this and make a tender of their stock to them — to return it ?
“A. We didn’t know the full amount of the indebtedness. We didn’t know that the plant was in danger — so much so that all its assets would be completely exhausted by the creditors.
“Q. But you did know that you couldn’t pay this indebtedness and keep afloat, unless you made an assignment or took some other move?
“A. Why, we were right up against it. The demands were being made on us so heavily that we couldn’t possibly take care of these debts without making some arrangements to secure money or protect ourselves in some way.”

As to rescission, complainants after discovering, by the presentation of the notes for payment, that they had been, as they claim, defrauded, and after learning from defendants that their asserted ignorance of the outstanding claims was disputed, believed they could still make themselves whole by proceeding with the business. In the brief filed for them it is said:

“We are well aware of the proposition of law for which defendants will doubtless contend, that, to rescind a contract for fraud, the wronged party must act promptly after discovering the fraud, and usually must place the other party in statu quo as a condition precedent. We do not dispute the long line of authorities that may be presented in support of this general proposition, but, like every general proposition of law, it is subject to exceptions under some circumstances. But, irrespective of any exceptions or modifications of the rule, we contend that complainants did not delay an unreasonable length of time before tendering back the stock .received. The bill was filed in this case within less than five months after the contract with defendants was made, although the defendants were living in Michigan and complainants in Indiana. The tender was made, also, a short time after the complainants learned definitely of the insolvency of the company. Owing to the condition of the books, it took some time to learn the real condition of the business.
“No one could tell from the books what the company •owed, and complainants could only learn that from time to time, as the creditors presented their claims. In case cf farmers who had wheat deposited with the company, they would gradually find out the status of the company, and would not be apt to present their claims all at once, or as promptly as others. Moreover, complainants were inexperienced boys engaged in farming prior to this venture, and did not know in what manner the defendants could be made to respond to them for fraud defendants had perpetrated on them. They were living in Indiana, and had no opportunity to get counsel with regard to the law prevailing in this State on the question at issue.”

The elapsed time is not the only or the controlling fact. The law requires disaffirmance to be notified within a reasonable time. What length of time is reasonable depends upon all the conditions. Complainants were owners of a majority of the stock of the corporation, and were, also, managers of the business. They elected, and they so testify, to keep the stock and proceed with the business. They ran the mill about one-third of the time. The result was not profitable, and, the result being ascertained, they resort, not to a suit at law for their damages, but ask the aid of a court of equity to permit them to make a new election to recover their land and restore defendants their shares of stock. On December 1,1902, and on December 8, 1902, defendants could have been restored as stockholders in a going concern, and could have taken up their business substantially as it was when they sold to complainants. It is said that the Thompson Milling Company was, all of the time, insolvent, and the shares of stock worthless. This statement is not supported by the record. Upon all the facts, the case is one requiring application of the familiar rule, so often stated and applied that, if the person defrauded—

“ Be silent and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake of fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted.” Grymes v. Sanders, 93 U. S. 62.

See, also, Jewett v. Petit, 4 Mich. 508; Merrill v. Wilson, 66 Mich. 232; Carroll v. Rice, Walk. Ch. (Mich.) 373.

The decree below is reversed without prejudice. A decree will be entered in this court dismissing the bill of complaint, with costs of both courts to defendants.

Moore, C. JV, McAlvay, Grant, and Blair, JJ., concurred.


author: Moore, O. J.

text:
    SUPERINTENDENTS OF POOR OF LIVINGSTON COUNTY v. SUPERINTENDENTS OF POOR OF OAKLAND COUNTY.
    1. Paupers — Who Are Paupers.
    Persons who, when they removed from one county to another, were well and strong, had considerable household furniture, some $60 in money, and sufficient provisions to support themselves and their family a few months, were not then paupers.
    2. Same — Right to Support.
    Where a woman with several children was deserted by her husband after moving into a certain county with him, and needed help in supporting herself and children, it was the duty of the poor authorities of such county to furnish her with aid. Section 4502, 2 Comp. Laws.
    S. Same — Removal op Paupers — Liability por Support.
    The superintendents of the poor of one county, after supporting a pauper therein for some time, procured transportation for her to another county, and had her removed to that county on her request and assurance that she had friends in that county who would take care of her. After her removal she became a charge on the county to which she was removed. Held, that, since the removal was not brought about with intent to make her a charge on the county to which she was removed, the superintendents of the poor of the county who caused such removal were not liable under sections 4514-4518, 2 Gomp. Laws, for her. support by the county to which she was removed.

      Error to Oakland; Smith, J.
    Submitted October 4, 1905.
    (Docket No. 6.)
    Decided November 9, 1905.
    Assumpsit by the superintendents of the poor of Livingston county against the superintendents of the poor of Oakland county to recover an amount paid for the support of an indigent family. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Edmund O. Shields, for appellant.

      Rockwell & Zimmermann, for appellee.
   Moore, O. J.

This is a suit commenced to recover sums of money expended for the support of a poor person. The case was tried before the circuit judge, who made the following findings:

“Finding oe Facts.
“Some time prior to December 27, 1899, one Annie Schram had married one Lon Johnson, and had separated from him, and was living in the village of Howell, Livingston county, Mich. She had two small children. Prior to December 27, 1899, she had received considerable help as an indigent poor person from the supervisor of the township of Howell. On the 27th day of December, 1899, at the village of Howell, she was married to one William Wood. They lived together as husband and wife in the village of Howell continuously until some time in March, 1900. Mr. Wood was away from home for three or four weeks during that time looking for a farm upon which-'they could move and live. He returned to Howell, and some time in March, 1900, Mr. and Mrs. Wood moved to a farm in the township of Brighton, Livingston county, Mich.
“Subsequent to December 27, 1899, the township board of Howell paid a rent bill and a bill for some wood furnished Mrs. Johnson; Mrs. Johnson and Mrs. Wood being the same person. Those bills seem to be for items furnished to Mrs. Johnson, and allowed by the township board, and paid for a long time after they were furnished.
“ Mr. and Mrs. Wood lived in the township of Brighton on a farm until March 20, 1902, and they received no help whatsoever from any poor authorities while in Brighton. Both Mr. and Mrs. W ood were healthy and strong. Mr. Wood had sufficient work"'at Brighton to support the family. They moved from Brighton to the village of South Lyon, Oakland county, on or about March 20,1902, taking with them these small children of Mrs. Wood.
“ At that time Wood had about $40 in money and Mrs. Wood about $20. They also had sufficient potatoes, pork, flour, and provisions, such as raised on a farm, to support the family a few months.
“ They also had household furniture to an amount which, with the provisions mentioned above, made three loads. They paid the cost of the teams in moving. It is said Wood made the statement when moving that they had enough to keep themselves at South Lyon six months if he did not get a day’s work. His statement was not strictly accurate. It probably referred to the items of flour, pork, and potatoes, or else he intended to include the money above mentioned. Both Mr. and Mrs. Wood were at that time able-bodied persons and healthy.
“Wood worked a little at South Lyon, but within two or three weeks abandoned Mrs. Wood and her children, and then ceased to support them. He left South Lyon, and returned to Brighton, Livingston county. He worked thereafter in several places, but returned to South Lyon only for two or three short visits with his family, and, before September 24th following, had ceased visiting his family, and has not since lived with nor supported his wife.
“ Sometime in April, 1902, Mrs. Wood applied to Prank Yowels, supervisor of the township of Lyon, in which the village of South Lyon is situated, for aid for herself and children. It was furnished and continued during the summer. In September she stated to Mr. Yowels she preferred to live at Howell, where she had friends, and wished to go there, but had no money to pay the cost of moving, and asked for aid for that purpose.
“After consultation with the poor commissioners of Oakland county Mr. Yowels, as supervisor, on September 24th, furnished the tickets for transportation of Mrs. Wood and her children from South Lyon to Howell, and gave them to her. He also paid the drayage for hauling her household goods to the depot in South Lyon and freight on goods. These expenses were paid by the poor commissioners of Oakland county. Mrs. Wood had no money at that time.
“It is claimed by the plaintiff that when Mr. Vowels was asked for transportation he refused it until Mrs. Wood promised not to return to South Lyon, but the evidence taken in this court fails to substantiate the claim.
“November 5, 1902, Mrs. Wood applied to the supervisor of the township of Howell for aid for herself and children, and was furnished appropriate aid to the amount involved in this suit. Her husband was at that time a resident of the county of Livingston.
“November 29, 1902, plaintiff gave notice to the defendant as required by sctions 4516, 4517, 2 Comp. Laws, and on December 29th the defendant served notice denying liability.

“Finding oe Law.

“ That on the foregoing facts the defendant is not liable to plaintiff.”

There are assignments of grror in relation to the question of pleadings and upon the admission of testimony. It was stated, however, upon the oral argument, that a decision upon the merits was desired. The question, then, is whether, upon the state of facts found by the circuit judge, he was right in holding that the defendant is not liable. It is the claim of counsel for plaintiff that under the provisions of sections 4514 to 4518, 2 Comp. Laws, defendants are liable. We think it very clear that when Mr. and Mrs. Wood moved to Oakland county they were not paupers. It was not until after Mr. Wood deserted her that Mrs. Wood needed help from the poor authorities. It is equally clear that it was then the duty of the poor authorities of Oakland county to furnish her with aid. See 2 Comp. Laws, § 4502; Superintendents of Poor of Kalkaska Co. v. Superintendents of Poor of Grand Traverse Co., 120 Mich. 247.

Did the removal of Mrs. Wood to Livingston county, under the circumstances found by the circuit judge, bring the case within the provisions of sections 4514 to 4518, 2 Comp. Laws, as claimed by counsel for the plaintiffs ? A reference to these sections will show that the intent with which the removal is brought about is a very important item. It would be necessary, in order to secure a conviction under section 4514, to show that the intent existed to make the county to which the removal was made chargeable with the support of the pauper. A like intent must be shown before the poor authorities from which the pauper came can be charged with his or her support. See Superintendents of Poor of Kalkaska Co. v. Superintendents of Poor of Grand Traverse Co., 120 Mich., •at page 249. In this case the court did not find an intent on the part of the poor authorities of Oakland county, in aiding Mrs. Wood to move to Livingston county, to make her a charge upon that county. The record shows that Mrs. Wood had lived in Livingston county a great many years. Her friends and acquaintances all lived there. Mr. Vowels testified that Mrs. Wood requested him to furnish means to enable her to go to Livingston county.

Q. And what is the fact as to your making any suggestion to her with reference to her going back ? * * *
A. I asked Mrs. Wood if there was any one there to take care of her, provided she was furnished transportation. She said if she could get to Howell she would be all right, as she had friends there. I asked her that question after she asked for transportation. I am sure I did not make any suggestion of that kind before she asked for transportation to Howell. I did not advise her to go back, or anything of that kind. To the best of my recollection I did not ask her to go back, and no one else asked her under my instructions that I know of, or within my knowledge.”

Dr. Henry, who purchased the tickets, says:

“Mrs. Wood repeatedly assured Mr. Vowels that* if she could only get back to Howell, where the friends and acquaintances of herself and husband lived, she would better her condition and would be able to obtain sufficient employment to enable her to support and maintain herself and children.”

Mrs. Wood’s testimony upon the trial does not seriously controvert this, though she made a very different state: ment to the poor authorities of Livingston county. We think the testimony would not fairly justify the inference that the removal of Mrs. Wood was brought about with the intent to make her a charge upon the poor authorities of Livingston county, but that her return was voluntary.

Judgment is affirmed.

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


author: Moore, C. J.

text:
    GOODSPEED v. UNITED SHOE MACHINERY CO.
    Contracts — Conditions—'W aiver.
    A shoe manufacturer, being indebted to defendant for royalties for the use of machinery, sold his stock, unmanufactured and in process of manufacture, to plaintiff, who sent his check for the royalties to defendant to be used on condition that the lease of the machinery and the claim against the manufacturer be assigned to him. Defendant agreed and used the check but no lease or assignment was made. Held, that plaintiff, by making use of the machines, for which he paid the usual royalty, did not waive the conditions on which he sent the check so as to prevent recovery of the amount thereof.
    Error to Wayne; Brooke, J.
    Submitted October 5, 1905.
    (Docket No. 12.)
    Decided November 9, 1905.
    Assumpsit by John W. Goodspeed against the United Shoe Machinery Company for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      George W. Bates, for appellant.

      Guy A. Miller (Maybury, Lucking, Emmons & Helfman, of counsel), for appellee.
   Moore, C. J.

This is an action of assumpsit on the common counts. It was begun to recover the sum of $565.85, remitted on June 3, 1902, by the plaintiff to the defendant, and interest thereon. The plea was the general issue. There was no notice of recoupment or set-off. The plaintiff recovered a judgment by direction of the judge. The case is brought here by writ of error.

Prior to June, 1902, the Dr. Reed Cushion Shoe Company was engaged in business and used machines belonging to the defendant company, for which use a royalty was paid. The plaintiff in this case was in May, 1902, given a bill of sale from the Dr. Reed Cushion Shoe Company of many of its assets, which included stock unmanufactured and in process of manufacture. Later he wrote the following letter:

“Detroit, Mich., June 3rd, 1902. “T. E. Johns, Esq.,
“Agent United Shoe Mach’y Co.,
“ Chicago, 111.
“Dear Sir: I was very much disappointed in not being able to see you in Detroit today and get a settlement or an understanding in regard to the United Shoe Machinery, so that we could keep this mill going. I find the Dr. Reed Cushion Shoe Company are owing your company in the neighborhood of $565.85 for royalties, machinery, and supplies. I am willing to advance this amount rather than have our mill shut down, .providing .you will release the machinery, make a lease to myself, and make me an assignment of your claim against that company.
“ Enclosed please find check to cover the above amount, and, if acceptable to you, wish you would so advise me at Grand Rapids, Mich., also Geo. A. Marr, Detroit, so that we can start the mill going at once. This remittance is made subject to the conditions above given. Make the assignment to J. W. Goodspeed. My reason for wanting a lease of this machinery is that I have bought the other contents of this plant and shall continue to make welted shoes.
“Respectfully yours,
“ J. W. Goodspeed,
“Of Goodspeed Bros., Grand Rapids, Mich.
“Reference: Grand Rapids Nat. Bank.”
Mr. Johns replied to the letter, writing, among other things:
“I note what you say regarding your willingness to go ahead with the factory in Detroit, and will be pleased to see you do so. I will do everything I can to have the company grant you the privilege. I will forward your check and letter to the company, and will do all in my power to have the company transfer the machines from Dr. Reed Cushion Shoe Company to you.”

June 9,1902, the defendant wrote plaintiff from Boston, saying it had received from Mr. Johns the letter of June 3d, and stating, among other things:

“We are forwarding to our agents, the Ross-Moyer Manufacturing Company, at Cincinnati, today, leases for these machines and an assignment of our claim, with instructions to forward you the leases for signature upon advice which is satisfactory regarding your financial standing.
“We have made inquiry of the Grand Rapids National Bank, as per reference given us, but we would like also for you to give us a personal statement, which we assure you shall be treated confidentially, whether you become our lessee or not.”

The plaintiff did not reply to this letter. The Cincinnati house did not write to him until July 7th. No leases were ever made to the plaintiff. He in the meantime used some of the machinery, and for such use the royalties were paid, the same as they would have been had the use been by the Dr. Reed Cushion Shoe Company. Without waiting to see what would be the reply to its letter of June 9th, the defendant company indorsed the check to the National City Bank of Lynn, which bank afterwards indorsed it, and it was paid through the Grand Rapids clearing house on June 17, 1902. The defendant, instead of assigning its claim against the Dr. Reed Cushion Shoe Company to the plaintiff, sent the last-named company on the 10th of June a receipt for $565.85. Later some correspondence followed looking to a settlement, but one was not reached. Suit was brought, and a verdict was directed as before stated.

Defendant groups its assignments of error under the following heads:

1. We insist that a waiver exists from the unauthorized use of this machinery, when Goodspeed sought to get a release of the machinery by pretending to the machinery company that he was not using it, and at the same time advancing the $565.85, ostensibly for the Dr. Reed Company, as a means of inducing the machinery company to delay action, pending the settlement of the matter of the ■financial statement, so that he might get the product of the shop for June, worth about $2,500, then decline to make such statement and demand the return of the money, on the pretense that the Dr. Reed Company had used the machinery in June, £nd thus get the benefit of his own unlawful conduct without paying this claim.
“2. The agreement between Goodspeed and the Dr. Reed Company made the former a party in interest, which rendered it impossible for him to treat this remittance other than as a payment of the debt, so far as this defendant was concerned.
“3. The claim of justification for Goodspeed’s use of the machinery is conclusive that he treated the use of the machinery as a fulfillment of the conditions of the remittance.”

It would profit no one to discuss these respective claims in detail. We shall content ourselves with saying that defendant was not justified in using the check and ignoring the conditions, a compliance with which was necessary to authorize its use.. There is nothing in the record to warrant the claim of waiver, nor to justify the use of plaintiff’s money to pay a debt due from the Dr. Reed Cushion Shoe Company.

Judgment is affirmed.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred. v


author: Carpenter, J.

text:
    COLLINS v. WELCH.
    Insurance — Mutual Companies — Insolvency — Assessment — Judgment — Collusiveness—Collateral Attack.
    Where a circuit court in chancery, acting under section 7331, 2 Comp. Laws, has adjudged a mutual fire-insurance company insolvent, appointed a receiver, and levied an assessment against its members, one of them cannot, when sued for the amount of his assessment, question the validity of the assessment for excessiveness.
    Case made from Genesee; Wisner, J.
    Submitted J une 16, 1905.
    (Docket No. 29.)
    Decided November 10, 1905.
    Assumpsit by Chester L. Collins, receiver of the Michigan Manufacturers’ Mutual Fire-Insurance Company, against Frederick Welch for the amount of an assessment. There was judgment for defendant, and plaintiff appeals.
    Reversed.

      Chester L. Collins, in pro. per.

      W. JEJ. Scott, Clarence Tinker and Brown & Farley, for appellee.
   Carpenter, J.

The Michigan Manufacturers’ Mutual Fire-Insurance Company was a corporation organized under sections 7317-7336, 2 Comp. Laws. Acting in pursuance of section 7331, the circuit court for the county of Bay, in chancery (a court having jurisdiction), duly adjudged said corporation insolvent, and appointed plaintiff its receiver. Subsequently that court, again acting in pursuance of said section, made an order'on the réport of said plaintiff as receiver, levying an assessment against the members of said company, and fixing the proportionate amount to be paid by each of said members.

Defendant was one of said members, and this suit was brought in the circuit court for the county of Genesee to recover the amount determined by the order heretofore mentioned to be due from him. Upon the trial, defendant contended that the assessment was excessive, and the learned trial judge permitted him1' to introduce testimony in support of this contention, and submitted that question to the jury, who rendered a verdict in his favor. From the judgment entered on said verdict, plaintiff appeals; insisting that the contention that the assessment was excessive could not be raised in this suit.

The effect of thd holding of the trial judge was to permit the jury in this case to review and reverse the decision of the circuit court for the county of Bay, in chancery. No statute of this State gave the defendant the right to thus review that decision. The contention that such a right exists must be based upon the ground that, because defendant was not a party to the original chancery suit, he was not bound by said order. This contention was made in Hawkins v. Glenn, 131 U. S. 319, a case very much like that at bar, and it was answered by Chief Justice Fuller, speaking for the entire court, in these words:

The stockholder is bound by a decree of a court of equity against the corporation in enforcement of a corporate duty, although not a party as an individual, but only through representation by the company. A stockholder is so far an integral part of the corporation that, in the view of the law, he is privy to the proceedings touching the body of which he is a member.”

This principle is sustained by numerous other authorities. See Hand, McNally & Co. v. Insurance Co., 58 Ill. App. 528; Castleman v. Templeman, 87 Md. 549 (41 L. R. A. 367); Howard v. Whitman, 29 Ind. 557; Langworthy v. Carding, 74 Minn. 331.

It follows from these decisions, and it accords with our judgment, that defendant’s attack upon the assessment as excessive should have been made in some direct proceeding, either in the circuit court for the county of Bay, in chancery, or in some other court possessing authority to review its decision. In the language of Mr. Justice Waterman in Band, McNally & Co. v. Insurance Co., 58 Ill. App. 528, we say:

“ We do not think that in this suit appellant can question the propriety of the amount of the assessment ordered by the court. It is manifest that to permit this might result in a multitude of variant decisions as to the magnitude of the assessment to be made.”

Our own decisions (Wardle v. Townsend, 75 Mich. 385 [4 L. R. A. 511], and Warner v. Delbridge & Cameron Co., 110 Mich. 590 [34 L. R. A. 701] ), relied upon by defendant, are not opposed to the foregoing conclusion. In Wardle v. Townsend it was stated that, under a statute which made the assessment prima facie evidence of the receiver’s right to recover the amount assessed, defendant, when sued for such an assessment, might show that it was excessive. The right to make the defense in that case was sustained on the ground that it was given by the statute under which the proceedings were instituted. That decision has no application to this case, for the statute on which these proceedings are based gives no such right. In Warner v. Delbridge & Cameron Co., supra, this court merely decided that an order of the court of a sister State, making the assessment, was not a judicial proceeding to which ‘ ‘ full faith and credit ” must be given, under article 4, § 1, of the Constitution of the United States. No such question is involved in the case at bar.

This record discloses no question for the decision of the jury. A verdict should have been directed for plaintiff.

Judgment reversed, and a new trial ordered.

Moore, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    HOSIE v. HART.
    1. Evidence — Judgments.
    In an action on a bond conditioned to pay a judgment, a judgment valid on its face, prima facie establishing defendant's liability, is properly admitted in evidence. •
    2. Saving Questions for Review — Finding of Facts — Necessity.
    In an action on a bond conditioned to pay a judgment, where the judgment was introduced in evidence, and defendant introduced testimony to invalidate the judgment, error of the court in upholding the judgment, as evidenced by the rendition of judgment for plaintiff, cannot be reviewed in the absence of a finding of facts.
    Error to Benzie; Chittenden, J.
    Submitted October 6, 1905.
    (Docket No. 20.)
    Decided November 10, 1905.
    Assumpsit by William Hosie against William A. Hart, principal, and John A. Evitts and Lewis J. Tripp, sureties, on an appeal bond. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Smurthwaite & Alway, for appellants.
    ' M. G. Paul, for appellee. -
   Carpenter, J.

This suit was brought upon a bond executed by defendants, conditioned upon their paying any judgment that might be rendered against the first-named defendant in an attachment suit commenced against him by plaintiff. The cause was tried before the circuit judge without a jury. On the trial plaintiff introduced in evidence a record of a judgment, valid on its face, establishing defendants’ liability. Defendants offered testimony which they claim proved the invalidity of said judgment. The trial court'rendered a judgment in favor of plaintiff. No finding of facts was either made or requested.

Defendants bring the case to this court, and' ask a reversal of the judgment against them on this ground, and this ground only, viz., that the judgment which fixed their liability was void. Under the settled practice of this court, we are not at liberty to consider defendants’ contention. If the trial court erred in upholding the judgment (and this we do not decide), that error occurred, not in making a ruling to which defendants excepted (for the ruling admitting the judgment record in evidence was not, as claimed by defendants, erroneous), but in rendering judgment in favor of the plaintiff. Without a finding of facts we cannot determine whether or not the trial court erred in rendering such judgment. See Wertin v. Crocker, 47 Mich. 642; McDonell v. Union Trust Co., 139 Mich. 386, and authorities cited.

Judgment is therefore affirmed.

Moore, C. " J., and Grant, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    BRONK v. STANDARD MANUFACTURING CO.
    1. Reformation of Instruments— Sufficiency of Evidence.
    On. a bill to reform a lease by striking out certain words therein, evidence considered, and held, sufficient to show- that the words complained of were inserted through a mistake of the scrivener.
    2. Same — Lease by City.
    The provision of the charter of the city of Jackson that no real estate or interest therein shall be disposed of unless by ordinance or resolution of the common council, does not prohibit reformation by the court of a lease of city property, executed pursuant to a resolution.

      S. Same — Laches.
    A delay of three and one-half years in seeking reformation of a lease, held, not fatal where, up to a time immediately preceding the filing of the bill, all parties agreed upon a construction of the lease in accordance with its meaning as reformed.
    Appeal from Jackson; Parkinson, J.
    Submitted June 13, 1905.
    (Docket No. 181.)
    Decided November 21, 1905.
    Bill by Edgar Bronk against the Standard Manufacturing Company and the city of Jackson to reform alease. Prom a decree for complainant, defendant Standard Manufacturing Company appeals.
    Affirmed.

      Wilson & Cobb, for complainant.

      Thomas E. Barkworth, for appellant.
   Montgomery, J.

The city of Jackson owned certain manufacturing buildings, located on North Jackson street, and known as the “Old Purifier Buildings.” January 20, 1897, the city, by writing, leased a portion of such buildings, including the heat and power plant, to H. A. Christy of Chicago. This lease or agreement, among other provisions, contained the following:

It is mutually understood and agreed that the party of the second part will from time to time during said term furnish steam for heating and such power as may be necessary for propelling machinery in the other buildings on said premises, which are not included in this lease, which may be in operation in carrying on such manufacturing business in such other buildings as the city may permit to be carried on there, provided the same shall not require the furnishing at any time of more than' one-half the power of such plant, and that for all such power and heat furnished the party of the second part shall receive pay from the party or person using the same, such rental as may be agreed upon by the parties furnishing and using the same.”

It is further provided that, in case of disagreement on the subject, the matter shall be referred to the common council of the city, and that the expense of procuring an inspection from time to time of the boilers should be regarded as part of the total expense of the power. In March, 1897, the city leased the other buildings on the premises to the defendant, the Standard Manufacturing Company, for a period of five years, with an option to the lessee for an additional term of five years, at an annual rental of $1,500. In 1899, there being about eight years of the unexpired term, Mr. Christy was desirous of disposing of his rights under the lease or agreement with the city. There being some question as to his right to assign this lease, he made application to the common council of the city for a new lease. Such communication was referred to a special committee, and on January 16, 1899, such committee reported to the common council, advising the revising of such contract, which committee reported February 20, 1899, recommending the adoption and execution of the lease in question, with the exception of a single provision not here material. The report of the committee being adopted, the old lease was, by mutual consent, surrendered, and the new lease was duly executed by the mayor and recorder of the city and Mr. Christy. It bears date May 6, 1899, and provides for a term of eight years. The provisions contained in the two leases to Christy in relation to heat and power are identical, except the words “in excess of one-half,”inserted in the second lease between the word “furnished” and the word “the.” Early in 1899 Christy proposed to assign this lease to the Bronk-Buffinton "Shirt Company, a copartnership of which the complainant was a member, and on March 28, 1899, an assignment was executed by Mr. Christy to such firm. The complainant, observing the peculiar wording of the contract, declined to accept the contract until assured that he would not be called upon to furnish heat or power for the other buildings free of charge. Acting upon the suggestion of the complainant, Mr. Christy obtained the written opinion of the assistant city attorney as to the construction of the lease, and also a statement of the defendant company, signed by its secretary, to the effect that such company would pay for heat and power furnished it so long as they (the Standard Company! should desire to and should use such power and heat. So long as Mr. Christy held under his lease, the defendant company paid for the power and heat furnished it upon a basis of one-half the expense of operating the power plant, and after the complainant took possession, under assignment from Christy, such company continued to pay for heat and power until September 1, 1902, at which time its first five-year term expired. After the defendant company had exercised its option to continue its lease with the city for another five years, and had entered into a new contract with the city, they wrote the complainant that their agreement regarding heat and power had expired, and that, “in releasing the plant, we accepted the assignment of the city to their right for heat and power, as expressed in their lease with Mr. Christy.” This bill was filed to reform the second lease to Christy by striking out- the words “in excess of one-half.” The circuit judge decreed the relief prayed, and the defendant company appeals. The city does not appeal.

Upon the question of fact, we are satisfied with the finding of the circuit judge. It is established to our satisfaction that the revision of the lease to Christy was not had with a view to changing the terms of the first lease as they related to rental of power, and that those words were inserted through a mistake of the scrivener. The course of after dealing is strongly corroborative of the direct testimony which tends to establish this fact.

It is contended by defendant’s counsel that, inasmuch as the charter of the defendant city provides that no real estate or interest therein shall be sold or disposed of unless by ordinance or resolution of the common council, the resolution authorizing the contract in question is to be treated as legislative action, and that a contract so made cannot be reformed, because the freedom of legislative action will not permit the intervention of judicial authority, and because it would be impossible to have, in such case, the necessary oral contract upon which the reformation must be based. We think, however, that the answer to the first reason suggests the answer to the other. It is clear that a court would in no case decree a reformation unless the real intent of both parties in the making of the contract was both concurrent and established by proof. The meritorious question is whether the court may reform a contract authorized by the common council where a mistake is manifest. Courts may not reform records of a municipality showing legislative action. The reason for this is that such records must be held to import absolute verity. Public security would be impaired if the verity of recorded legislative action could be made the subject of judicial investigation, on similar considerations to those which support the rule of sanctity which surrounds the verdict of a jury. And yet, in either case, in a direct proceeding by the authority which enacts the law in the one case, or by the court which records the verdict in the other, the recorded action may, by timely action, be set aside and held for naught. The reason why the courts may not correct mistakes in legislative action, or the legislature mistakes in judicial action, is that in its own sphere each department of government is supreme and independent. But does this sanctity obtain as to the action of a municipal body in entering into a contract ? Suppose the charter of defendant to require the formal action of the council in executing a deed. And suppose a binding executory contract to execute such deed. Could the council shield itself from the performance of that duty by asserting that, as the charter required a vote of the council to authorize the execution of a deed, the contract could not be enforced by the courts ? We think not. The provisions of the charter relating to the execution of contracts are intended as safeguards against hasty action, and designed to provide written evidence of the action of the council, which, when taken with reference to a private contract, should be given the dignity of a contract in writing; but we do not think it becomes in any sense legislative action. The contract is required to be in writing, so is a deed of land, and yet the latter instrument is subject to reformation; and this notwithstanding the statute of frauds, which requires the contract to be in writing. Kimble v. Harrington, 91 Mich. 281. And while some doubt was expressed in some of the earlier cases of the power of the court to reform such instruments by adding to the subject-matter of the contract,, as by adding descriptions omitted, the current of authority now sustains this power. See an able note to Williams v. Hamilton, 65 Am. St. Rep. 501 (104 Iowa, 423). See, also, 2 Current Law, 1494.

The same considerations which have led the courts to sustain this power to reform deeds required by the statute of frauds to be in writing impel us to hold that the power exists in the present case. By exercising this power, we do not make a contract. We enforce the contract which the parties made with all the formality required by the statute, but which, by mistake, spoke a different language than that intended. As was well said in Noel’s Ex’r v. Gill, 84 Ky. 249:

“ The statute of frauds is not violated, but is uplifted, that it may not perpetrate the fraud that the legislature designed it to prevent.”

In the case of Griffin v. City of Salt Lake City, 18 Utah, 132, the power to reform a contract made with a municipal corporation was exercised apparently without question. In the two cases of Township of Bernards v. Stebbins, 109 U. S. 341, and City of Defiance v. Schmidt, 123 Fed. 1, a question closely analogous to that now under consideration was treated. In the former a failure of the public officials to affix a seal was treated as a mistake which might be subject to remedy in equity, even though the statute required a seal. In the latter case the use of the wrong seal was treated as a mistake, and the municipality enjoined from setting up the defense of a want of a seal; although in that case, also, the statute required the contract to be executed under the seal of the municipality.

We have considered the defense of laches, and are not convinced that the defendant company has equities which preclude the relief asked.

The decree is affirmed, with costs.

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