author: Moore, C. J.

text:
    WARN v. CITY OF FLINT.
    1. Executors and Administrators — Letters of Administration —Presentment of Claim Sued on — Evidence—Admissibility.
    The declaration in an action by an administratrix against a city alleged plaintiff’s due appointment as administratrix, and her presentation to the city of her claim as administratrix, as required by the city charter. The plea was the general issue. The proofs showed that while her bond was marked filed February 27th, it was approved and left in the clerk’s office not later than February 26th, and the letters of administration were then delivered to her. Her claim was presented to the city clerk February 26th, and acted upon by the council in March following. Held, that evidence of the letters of administration and of the presentation of her claim was admissible as against the objections that the letters were issued before the filing of the bond, and that she was not administratrix when she presented her claim.
    2. Highways and Streets — Injuries to Traveler — Action-Evidence — Instructions.
    Where, in an action for injuries from a defective street, plaintiff did not claim that the city was liable because of the unnatural accumulation of ice, but the city claimed that all the streets were covered with ice at the time, that the horse of the traveler injured was smooth-shod, and that because of these conditions the accident occurred, an instruction that ice on streets, coming from natural causes, would not create a liability, and if such ice caused the accident there could be no recovery, was not prejudicial to the city.
    3. Same — Negligence—Contributory Negligence — Evidence — Questions for Jury.
    In an action for injuries to a traveler from a defective street, evidence examined, and held, that the questions of the city’s negligence in allowing the street to become gullied out where it went down a steep hill, and the traveler’s contributory negligence in driving down such a hill covered with ice with a smooth-shod horse, were for the jury.
    4. Trial — Conduct of Counsel — Improper Remarks to Jury-Reprimand by Court — Effect.
    In an action against a city for injuries to a traveler through a defective street, plaintiff’s counsel, in his opening, stated that he would not be allowed to show that since the accident the street had been closed up and filled in at the place where the accident occurred. On objection by opposite counsel, the court stated that the counsel ought not to state anything he considered incompetent to prove. Held, that the court’s reprimand was sufficient, in the absence of a request for instructions to the jury, to prevent the granting of a new trial for the improper statement.
    Error to Genesee; Wisner, J.
    Submitted April 12, 1905.
    (Docket No. 56.)
    Decided June 29, 1905.
    Case by Sarah A. Warn, administratrix of the estate of Robert R. Warn, deceased, against the city of Flint for negligently causing the death of plaintiff’s intestate. There was judgment for plaintiff, and both parties bring error.
    Affirmed.

      Lee & Parker (DeVere Hall, of counsel), 'for plaintiff.

      Black & Roberts, for defendant.
   Moore, C. J.

Mrs. Warn is the widow of Robert R. Warn, deceased, and administratrix of his estate. It is her claim that her husband came to his death because of the defective condition of Sixth street, in the city of Flint. She obtained a judgment against the city, but not for so large an amount as she thinks she ought to have. Both parties have appealed, but the plaintiff does not ask any review of her assigments of error unless we think the judgment should be reversed because of the assignments of error taken upon the part of the defendant.

Saginaw street runs north and south. East of it is Harrison street, which runs parallel to Saginaw street. Fifth and Sixth streets run parallel to each other, and run from Saginaw street to Harrison street. Mr. Warn had occasion to deliver a small quantity of lumber to a new brewery building on Harrison street, between Fifth and Sixth streets. The lumber was in a one-horse wagon. He went south on Saginaw street to Sixth street, thence east on Sixth street, which was a street running downhill from a point east of Saginaw street. This was in the evening. Mr. Warn was found the following morning dead near the bottom of Sixth street, where it intersects with Harrison street.

It was the claim of plaintiff that, because of the pitch and di’ainage of the hill, the street had gullied or washed out so that the traveled portion was so narrowed as to become dangerous; that there were no barriers, and that deceased was in the exercise of due care.

On the part of the city it was claimed, and is claimed here, that Mr. Warn was familiar with this part of the city; that he might have gone a safe way by going on Fifth street, or some other one of the streets that led from Saginaw to Harrison street; that there had been a storm of ice and sleet that covered the streets generally; that Mr. Warn was driving ahorse smooth-shod; that before going down the hill he got down from the wagon, and learned the condition of the road; and that it was his own fault if he was hurt.

The plaintiff replied to this contention that the horse was not smooth-shod, and the shoes taken from the horse the morning when Mr. Warn was found were introduced in evidence. She also denied that Mr. Warn did more than examine the top of the hill, and says he did not see its condition at the bottom, and could not from where it was claimed he made the examination.

Testimony was given which tended to support these various contentions. At the request of the defendant, two special questions were submitted to the jury: First. Did Robert R. Warn examine Sixth street hill before going down ? Second. Was the accident to Robert R. Warn on Sixth-street hill caused by the ice on said hill ? The jury answered each of these questions, “No.”

The first group of assignments of error relate to the admission in evidence of the letters of administration, and the presentation of plaintiff’s claim to the common council. It is said the first should not be admitted because issued before the administrator’s bond was approved; and the second, because, when presented, Mrs. Warn was not administratrix. The declaration is brought in the name of the administratrix. It recites:

“This plaintiff was duly appointed administratrix of his estate by the probate court for the said county of Genesee, and has in her possession letters as such, ready to be produced and proved in this case, and after her appointment as such administratrix she filed with the clerk of said defendant the notice required by the charter of said defendant, a copy of which notice is hereto annexed and made part of this declaration, and within the time required by the charter she filed with and presented to the common council of said defendant a claim against said defendant, and the same was made out and filed pursuant to said charter, but the same has never been allowed by the said defendant or its common council, and a copy thereof is hereto attached and made a part of this declaration, and after the filing of said claim she waited more than the required time before bringing this suit; and by reason of the premises a right of action has accrued to this plaintiff as the administratrix of her said husband.”

The plea was simply the general issue. The difficulty grows out of the want of recollection of the clerk of the probate court as to when the bond was approved and the letters of administration delivered. The calendar of the probate court states that the bond was approved and filed and the letters issued February 25th, 1901, while the bond itself bears date of filing February 27th. It is very clear, however, from the record, that the bond was approved and left in the clerk’s office, and the letters of administration delivered to Mrs. Warn, not later than the 26th of February, 1901. Her claim was filed with the clerk of the common council February 26, 1901, and was first presented to the common council early in March. Under these circumstances, we do not think the judge erred in admitting these exhibits.

It is alleged as error that the court charged the jury:

“Ice on streets which comes from natural causes will not create a liability, and if you find that the ice did come from natural causes, and was not made to flow and accumulate at the spot complained of by reason of the shape of the roadway as constructed by the city, and that it was the cause of the accident, then the plaintiff cannot recover.”

Counsel say:

‘ ‘ This instruction assumed that the jury might find that the ice on this street had accumulated in unnatural quantities by reason of defective construction.”

We cannot agree with counsel. The plaintiff did not claim either in the declaration or at the trial that the liability of the city arose because of the unnatural accumulation of ice, but it was the claim of the city that the streets were generally covered with ice, that the horse was smooth-shod, and that because of these conditions the accident occurred. It was in the interest of the city that the charge was given.

Error is assigned because a verdict was not directed in favor of the defendant. We. have already stated the claims of the respective parties. There was a sharp conflict in the testimony. It cannot be said, as a matter of law, that there was no liability.

The record discloses the following:

“ The following language was used by Mr. Lee, one of the attorneys for plaintiff, in his opening to the jury:
‘“Since that time and since the accident, of course, we cannot show it to you — now since that time it [meaning the street] was first closed up, and then filled in there [meaning at the place of the accident].’
c< Mr. Roberts: I object to his making that statement, as he says he cannot show it.
The Court: You certainly ought not to state anything to the jury you consider incompetent to prove.
“Mr. Lee: I stated to the jury that it is incompetent to prove.
“Mr. Black: An exception to the statement of Mr. Lee.”

This is all that appears upon that subject in the record. It is said a new trial should be granted because of this. The record shows the case had been tried before. Counsel for plaintiff say in their brief: That upon the previous trial counsel for the city urged there was no liability because the city had not worked the street for a period of 10 years, and that the statement which is objected to grew out of the supposition that the same claim would be made upon this trial. That counsel thought it was legitimate, in opening the case to the jury, to refer to two facts in connection therewith: (1) That the city did perform acts which recognized its control over the street, as by closing it to travel, and (2) that a view of tho premises could not be awarded, and it would be improper for the jurors to visit the scene, because of the changed conditions, and that this was the only purpose of the statement. However the statement of counsel may have come about, the judge at once sustained the objection of the attorneys for defendant, and told the attorney making the statement he ought not to have made it. The judge would doubtless have instructed the jury further, had he been requested, but counsel evidently did not think the incident of sufficient importance to request him to do so. Under these circumstances, we do not think a new trial should be ordered because of what was said by the attorney.

We have considered all of defendant’s assignments of error.

Judgment is affirmed.

Carpenter, McAlvay, Ostrander,' and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN MATINEE ASS’N v. SECRETARY OF STATE.
    1. Corporations — Purpose op Incorporation — Statutory Pro- „ VISIONS.
    A corporation, organized for the purpose of improving the breed of horses by promoting the interests of the American trotting turf, without provision for a capital stock nor for acquiring any money or property, except from membership fees and annual dues, is not organized for pecuniary profit, and has no capital, and comes within Act No. 171, Pub. Acts 1903, providing for the incorporation of associations not for pecuniary profit.
    2. Statutes — Title—Subjects Included.
    The title of Act No. 171 of the Public Acts of 1903, entitled “An act for the incorporation of associations not for pecuniary profit,” is sufficiently comprehensive to include a provision that hereafter all new corporations not organized for profit, and having no capital stock, except religious organizations, shall be organized under the act.
    Mandamus by the American Matinee Association to compel George A. Prescott, secretary of State, to receive and file certain articles of association under chapter 158 of the Compiled Laws of 1897.
    Submitted May 12, 1905,
    (Calendar No. 21,067½.)
    Writ denied June 29, 1905.

      Fred A. Baker} for relator.

      John F. Bird, Attorney General (S. A. Kennedy, of counsel), for respondent.
   Moore, C. J.

The relator tendered to the secretary of State for record articles of association, under Act No. 18 of the Public Acts of 1887, to incorporate an organization bearing the name “American Matinee Association.” The purpose of the corporation, as stated in the articles, is “for the purpose of improving the breed of horses by promoting the interests of the American trotting turf.” The terms and conditions of membership are stated as follows:

“ Any individual, corporation, partnership, voluntary association, or any State, county or town, agricultural society organized under the laws of this State, or of any other State, or the Dominion of Canada, may become and remain a member by paying such membership fees and annual dues as shall be fixed and determined from time to time by the by-laws of the association.”

The articles of association contain no provision for a capital stock, nor for the carrying on of any business, nor for the acquiring of any money or property, except membership fees and annual dues from members. The secretary of State concluded the organization was “a new corporation, not organized for profit, and having no capital stock,” and that it is not a religious organization, that it came within an act entitled “An act for the incorporation of associations not for pecuniary profit,” section 7 of which reads: “Hereafter all new corporations not organized for profit and having no capital stock, except religious organizations, shall be organized under this act.” See Act No. 171, Pub. Acts 1903. He refused to file the articles of association. This is an application for a writ of mandamus to compel him to do so. Relator claims:

“ The act of March 1, 1887, is not within section 7 of the act of June 2,1903; that it only applies to corporations ‘not organized for profit and having no capital stock.’ Corporations organized under the act of March 1, 1887, may have a capital stock or a membership. If organized with a membership, they can amend their articles and provide for a capital stock. * * *
“ In other words, corporations that are authorized to have a capital stock are corporations organized for pecuniary profit. At all events, it cannot be said that they are corporations ‘ not organized for profit,’ so as to bring the acts under which they may be organized within section 7.”

We quote from brief of attorney general:

“ In reply to this, respondent insists that if such corporations are organized for profit and have a capital stock, within the meaning of section 7 of Act No. 171 and are therefore not included in Act No. 171, then they are expressly included in Act No. 232, Pub. Acts 1903, section 1 of which includes corporations for buying, selling, and breeding cattle, sheep, horses, and other live stock, and section 37 of which declares that it shall ‘include and apply to all corporations provided for in the following statutes: Chapter one hundred and fifty-eight [and others], 2 Comp. Laws, and shall repeal all other acts and parts of acts inconsistent with the provisions of this act.’
“ If it be said that the corporation in question is not included in the language just quoted — that it is not a corporation for buying, selling, and breeding horses and other live stock — we reply that it is organized under chapter 158, and states its purpose to be to improve the breed of horses. Hence, if it is a corporation for profit, and has a capital stock, it is subject to Act No. 232.
“ There is no inconsistency in saying that a corporation for the improvement of the breed of horses may be a ■corporation not for profit and having no capital stock, and hence subject to Act No. 171, or it may be a corporation primarily for profit, and having a capital ¡stock, as provided in Act No. 232, and be subject to, and organized under, Act No. 232.
“The question as to whether it should organize under Act No. 171 or under Act No. 232 must be determined by the objects and purposes shown by the articles of association.
“If the articles show that it is a corporation not for profit, it should organize under Act No. 171; but, if they ¡show that it is organized primarily for pecuniary profit to. the stockholders, it should organize under Act No. 232.”

For the purposes of this case, the object of the associa-. tion may be gathered from its articles. Attorney General v. Dorman, 59 Mich. 157; Detroit Driving Club v. Fitzgerald, 109 Mich. 670. Its object is stated to be “ for the purpose of improving the breed of horses by promoting the interests of the American trotting turf. ” There is no provision for a capital stock, nor for the acquiring of any money or property, except from membership fees and annual dues. We think this indicates very clearly not only that the proposed corporation had no capital stock. but that it was not organized for pecuniary profit, and comes within the provision of Act No. 171, Pub. Acts 1903.

Counsel further contends:

So far as section 7 of the act of June 2,1903, purports or may be construed to amend, modify, or repeal the act of March 1, 1887, it is not within the title of the act of June 2, 1903, and is unconstitutional and void.”

"We have already quoted the title of the act and the provisions of section 7. We think nothing in the latter is .incongruous with the former. It is competent to provide in the body of an act entitled “ An act for the incorporation of” certain corporations (naming them) that after the act becomes a law all new corporations of that kind shall be organized under the provisions of the act. See Cooley on Constitutional Limitations (6th Ed.), 172; People v. Mahaney, 13 Mich. 481; Soukup v. Van Dyke, 109 Mich. 679; Grimm v. Secretary of State, 137 Mich. 134, and the cases cited therein.

Having reached this conclusion, we deem it unnecessary to discuss the other questions raised by counsel.

The writ is denied.

Carpenter, McAlvay, Grant, and Blair, JJ.t concurred.


author: Montgomery, J.

text:
    BLACKFORD v. OLMSTEAD.
    1. Equity — Lost Deed —Bill to Establish — Necessary Averments — Quieting Title — Statutes.
    The statute (§ 448, 1 Comp. Laws) conferring jurisdiction upon courts of chancery in proceedings to quiet title was not intended to restrict the jurisdiction of the court of chancery in matters before cognizable by that court, and a bill to restore a lost deed and for a record of the decree for the protection of complainant’s title comes within a well-recognized head of equity jurisprudence, and is maintainable though it fails to show that complainant is in possession, or that defendant is not, as required by the above-mentioned statute.
    2. Same — Multifariousness.
    Where a bill is filed to restore a lost deed and set aside certain codicils to the grantor’s will, under which certain legatees would claim except for complainant’s prior title, the statement of the legatee’s claims for the purpose of cutting them off, is germane to the main purpose of the suit, and the fact that the relief by way of setting aside the codicils is beyond the power of the court to grant does not render the bill multifarious.
    3. Deeds — Delivery.
    Where a deed is delivered to the grantee with intent to vest title, a redelivery of it to the grantor for the purpose of insuring that it shall not be recorded will not defeat the grantee’s title.
    Appeal from Barry; Smith, J.
    Submitted April 25, 1905.
    (Docket No. 84.)
    Decided June 29, 1905.
    Bill by Charles H. Blackford against Kittie Olmstead and others to re-establish a deed, and for other relief. From an order overruling a demurrer, defendants appeal.
    Affirmed.

      Colgrove & Potter, for complainant.

      W. 8. Powers, Thomas & Pryor, and Jesse Arthur, for defendants.
   Montgomery, J.

This is an appeal from an order of the circuit judge, sitting in chancery, overruling a demurrer to complainant’s bill. The bill alleges, in substance, that Joel Evans was in his lifetime the owner of a farm in the township of Johnstown, Barry county, and that complainant had been employed by him from April, 1884, to July 1,1892, as a farm laborer, at the price of $20 a month for seven months in the year, and $12 a month for the remaining five months. The bill then alleges:

“That on or about the 1st day of July, 1892, the said Joel Evans and his wife, Deborah Evans, desired tó change the contract of employment with complainant, and then and there entered into a contract with complainant substantially as follows:
“That complainant was to work for the said Joel Evans and his wife so long as they should live, and to receive, as and for his compensation for work and labor so performed for them, the sum of $17 per month for seven months in the year, and $5 per month for the remaining five months in the year, and that if complainant Would continue in the employ of the said Joel Evans and his wife during their lifetime, that, as additional compensation for his work and labor, complainant was to have a warranty deed of the east half of the northwest quarter of section 35 in the township of Johnstown, Barry county, and State of Michigan. That this contract was made between said parties and agreed to, and that, in order to carry into effect said contract so made, the said Joel Evans and wife, in or about the month of July, 1892, went to the city of Battle Creek, Calhoun county, Mich., and caused to be made a warranty deed of said 80 acres of land last described to complainant. That said deed of conveyance was drafted by a justice of the peace of the city of Battle Creek, by the name of Briggs. That the consideration mentioned in said warranty deed was the sum of $4,000 and other valuable considerations. That said deed was fully executed by the said Joel Evans and wife, signed by them, and acknowledged before said Briggs, justice of the peace, and witnessed by two witnesses, as required by the recording laws of the State, and that said deed was brought by the said Joel Evans and wife to their home in Johnstown, and delivered to complainant. That said deed was returned to the said Joel Evans and his wife, who promised and agreed with the complainant that said deed should be retained by them so long as they lived, and that upon the death of the said Joel Evans and his wife the. same should be immediately placed upon record, and that complainant should come into the full possession and ownership of said 80 acres of land. * * *
“That Deborah Evans, wife of said Joel Evans, died July 28, 1898, and that complainant continued in the employ of said Joel Evans, and in carrying on said contract, until the death of Joel Evens, on the 31st day of December, 1903.
“That said complainant has fully completed all the terms and requirements of said contract. * * *
‘ ‘ That after the death of Deborah Evans, and in December, 1901, one Sarah Thompson was employed as a domestic in the home of Joel Evans, upon a stipulated salary. That, by a systematic course of fraud and deceit and undue influence, she began to take advantage of Joel Evans, and to acquire so much of his property as was in her power so to do, and succeeded in procuring from the said Joel Evans a warranty deed of said 80 acres of land involved in this suit. That said deed was sent for record to the register’s office of Barry county, Mich., with the suspicious direction, ‘Don’t publish,’upon it. That said deed was secured by fraud and deceit and undue influence, and at a time when the said Joel Evans was mentally incompetent to execute a deed, and is void and of no effect as against the rights of complainant.
“That, at the time said deed was procured, (a) Joel Evans was mentally incompetent to execute the same; (b) that he was subject to the habitual use of intoxicating liquors; (c) that the same was procured by fraud and undue influence; (d) that Joel Evans was an ignorant man, unable to read or write, and that said Sarah Thompson, and those combining and confederating with her, took advantage of said Joel Evans, his inability to read and write, of his mental and physical condition and loss of mental capacity by reason of sickness and the excessive use of alcoholic stimulants, and procured from him the deed to Sarah Thompson.
“ That said Sarah Thompson entered into a conspiracy with one Sands H. Lane, through the aid and assistance of Jesse Arthur, to procure from said Joel Evans the largest part of his property.
“ That the will and codicils mentioned and described in said bill of complaint express the wish and will of said Sarah Thompson and Sands H. Lane, aided and assisted by the said Jesse Arthur, and that said codicils in no way express the wish and desire of Joel Evans, and were not made and executed by him, but by those conspiring and confederating against him.
“That, the said Sarah Thompson, in order to cheat, wrong, and defraud complainant, destroyed the deed which the said Joel Evans and wife made to complainant of said 80 acres of land, in order that she might better be able to carry out her fraudulent purpose and design.”

The will referred to purported to dispose of all the property of Joel Evans, and treated the land in question here as a part of testator’s property. The will provided a legacy to complainant of $500. The first codicil contained an additional bequest of $500 to complainant. The second codicil provided that, in case complainant was dissatisfied and should bring suit against the estate, the expenses of such suit should be paid out of the $1,000 bequeathed to complainant.

The bill prays that the court decree specific performance of the contract between Joel and Deborah Evans and complainant; that the deed to complainant be re-established, and that title to the 80 acres in question be decreed to complainant; that the deed to Sarah Thompson be set aside; that the codicils to the last will of Joel Evans be set aside in so far as they conflict with the just claims of complainant. The bill also contains a general prayer for relief. The grounds of the demurrer were that under the facts stated the complainant has an adequate remedy at law; that the court has no jurisdiction to set aside the codicils; that the bill is multifarious.

The contention that the complainant should seek his remedy at law is based upon the claim that the bill is to be treated as a bill to quiet title, and as it fails to aver possession in complainant, or that defendants are not in possession, it is fatally defective under the statute (1 Comp. Laws, § 448) as construed by this court in Seymour v. Rood, 121 Mich. 173, Chandler v. Graham, 123 Mich. 327, and Crosby v. Hutchinson, 126 Mich. 56.

If the complainant was compelled to rely upon the statute above cited as conferring jurisdiction, the objection urged would be insurmountable. But it bas been frequently held that tbis statute conferring jurisdiction upon courts of chancery in proceedings to quiet title was not intended to restrict tbe jurisdiction of tbe court of chancery in matters before cognizable by that court. King v. Carpenter, 37 Mich. 363; Jones v. Smith, 22 Mich. 360; Ormsby v. Barr, Id. 80. Tbe bill in tbis case asks to have a lost or destroyed deed restored, and for a record of tbe decree for complainant’s protection. Tbe case comes clearly within a well-recognized bead of equitable jurisprudence. See King v. Carpenter, supra.

Tbe criticisms as to tbe form of tbe bill are, first, that it is multifarious, second, that a court of equity bas no authority to set aside tbe codicils, and, third, that necessary parties are omitted, i. e., certain legatees under tbe codicil to tbe will. If tbe second contention be accepted, and it is, both by complainant’s counsel and tbe court, there would seem to be no necessity for joining any legatees named in tbe codicil except those who, as representatives of Sarah Thompson, would take under tbe codicil except for complainant’s prior title. For tbe purpose of cutting off tbe claims of tbe representative of such legatee, a statement that tbis codicil was made in their favor would seem to be germane to tbe main purpose óf tbe suit. Tbis being so, tbe fact that relief was asked beyond tbe power of the court to grant does not render tbe bill multifarious. Stone v. Railroad Co., 139 Mich. 265.

Tbe meritorious question remains. It is contended that tbe bill wholly fails to state a case, for tbe reason that there was no delivery of tbe deed such as would pass title to complainant, and that there was no such part performanee as would cut off the defense of the statute of frauds. If defendants’ premises are well taken, it would be difficult to find an answer to their contention. As we construe this bill of complaint, however, it alleges that a deed of this land was made and delivered to him, and was then handed back to the grantor to insure that it would not be placed of record. If the proofs should show a delivery with intention to vest title, the fact that the deed was returned to the grantor would not in law defeat a delivery once accomplished. 13 Cyc. p. 563; Hall v. Dobbin, 119 Mich. 106.

The cases cited by defendants’ counsel—Schuffert v. Grote, 88 Mich. 650, and Merchant v. Guilds, 129 Mich. 168—bearing some analogy to the case at bar, were determined upon a consideration of the question of fact involved.

The order is affirmed, with costs, and the case remanded for further proceedings.

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


author: Ostrander, J.

text:
    O. W. SHIPMAN CO. v. DETROIT, LAKE SHORE & MT. CLEMENS RAILWAY.
    Corporations — Insolvency—Assets—Sale—Trust Fund — Judgment Creditor’s Bill. •
    The president and principal stockholder of an insolvent corporation negotiated a sale of its assets, and submitted the plan to the stockholders, together with a list of indebtedness which he proposed to pay, amounting to more than the selling price. The sale was made and the proceeds, with other funds of the president, applied as agreed. Held, that creditors whose claims were not paid could not recover pro rata against the president on the theory that he was a trustee of all the creditors to the extent of the proceeds of the sale.
    Appeal from Wayne; Rohnert, J.
    Submitted April 27, 1905.
    (Docket No. 7.)
    Decided June 29, 1905.
    Judgment creditors’ bill by the O. W. Shipman Company and others against the Detroit, Lake Shore & Mt. Clemens Railway, Merrill B. Mills, and others. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Bowen, Douglas, Whiting <8 Murfin, for complainants.

      Maybury, Lucking, Emmons <8 Helfman, for defendant Mills.
   Ostrander, J.

Complainants, in April, 1900, filed a judgment creditors’ bill, in which, aside from formal averments, it is stated that prior to March 31,1900, defendant Detroit, Lake Shore & Mt. Clemens Railway was operating a suburban street railway through the city of Detroit and various townships to the city of Mt. Clemens, and possessed of a large amount of personal property, and that defendant Mills was “principal stockholder of the same, and president of the corporation;” that on the day last mentioned the said company, for a consideration of $400,-000, sold all of its property to defendant Detroit & Port Huron Shore Line Railway; that the bulk of the consideration aforesaid passed to defendant Mills, “who had been financing the said railway while it was in operation, * * * and who, as your orators are informed and believe, as part of the consideration for said sale, did, before said sale took place, agree with the defendant Detroit & Port Huron Shore Line Railway (but did not so agree with your orators, or any or either of them) to pay all the claims outstanding at that time against the Detroit, Lake Shore & Mt. Clemens Railway, among others being your orators’ several claims; but your orators charge the fact to be that the said Mills has not paid any of the said claims, and your orators are unable by any process of law to collect the same from the Detroit, Lake Shore & Mt. Clemens Railway, nor have your orators thus far been able to collect the same from the defendant the Detroit & Port Huron Shore Line Railway, which corporation, your orators expressly charge, is liable, having received all the assets,' tangible and otherwise, of the Detroit, Lake Shore & Mt. Clemens Railway, to the unsatisfied creditors of the Detroit, Lake Shore & Mt. Clemens Railway for the full amount of their claimsthat defendant Detroit & Port Huron Shore Line Railway has in its possession and under its control all of the assets of the selling company, refuses to pay the demands of complainants, and assigns as a reason for such refusal the said undertaking of defendant Mills; that defendant Mills refuses to pay complainants. The prayer for relief is the usual prayer of a judgment creditors’ bill, and, further, that, if it is discovered that the buying company had transferred to it all of the assets of the selling company, it be decreed to pay complainants’ demands; that if it appeared that the judgment debtor had no assets, and, further that defendant Mills had received the bulk of the consideration for the sale, and, having so received this large amount of property and money, has not paid any of the debts of the said corporation, and that he undertook and agreed with the buying company to pay said debts, that he be decreed to pay complainants’ said demands. Defendant Mills alone answered the bill of complaint. The cause as to this defendant having been brought on for hearing, a decree was made dismissing the bill.

The facts do not appear to be in dispute. The capital stock of the selling company was $300,000, of which defendant Mills held $125,000, and he was a director and president of the company. There were $350,000 of bonds secured by mortgage upon the assets of the company. These assets were worth not more than $341,000. The total indebtedness of the company to Mr. Mills, who had made large cash advances to the company, and to others, including the bonded debt, at the time of the sale of the road, was upwards of $450,000. It did not pay operating expenses, had been unsuccessful in securing certain terminals, and was in losing competition with another railway company. Mr. Mills negotiated a sale of property, excepting certain items of personalty, for $340,000, payable $50,000 cash, and $290,000 in bonds of the buying company. He submitted to the company the proposition to sell, and, as a part of it, a list of the debts of the company which he would pay and discharge. This included the debt which the company owed to himself, and debts to others, to pay which he was personally liable as surety for the company. The total was in excess of the selling price. At a meeting of stockholders at which every share of stock (3,000) was represented, 2,298 shares were voted in favor of'accepting the proposal. The directors, with a single exception, ratified and sanctioned the action of the stockholders. Mr. Mills took the proceeds of the sale, and discharged not only the scheduled debts, but all the debts of the company, excepting about $16,000. Complainants are among those who were not paid. None of the stockholders received a penny. It is conceded that Mr. Mills actually paid, for the selling company, much more than $340,000 of its actual obligations, including all of those designated by its stockholders to be paid. It is not claimed here that Mr. Mills ever agreed to pay the debts of the complainants. It was conceded at the hearing that no relief could be had against the buying company.

It is contended in this court that Mr. Mills should be held to be trustee of the proceeds of the sale for the benefit of all creditors of the judgment debtor. This contention is based upon the facts: (1) The insolvency of the selling company at the time sale was made; (2) the position occupied by Mr. Mills as officer of the company; (3) the actual receipt by Mr. Mills of the proceeds of the sale. The argument which is made proceeds upon the premise, also, that Mr. Mills made a sale to himself. That, plainly, he did not do. The company made the sale, and, as has been stated, it directed the disposition of the purchase price. The proceeds of the sale were not sufficient to pay all of the debts. Unless it was bound, under the circumstances, to apportion this sum to all of its creditors, the disposition which it did make cannot be questioned by these judgment creditors. Complainants claim that the company, or Mr. Mills for it, was bound to so apportion the proceeds of the sale. They rely also upon Miner v. Ice Co., 93 Mich. 97 (17 L. R. A. 412). In that case, proceedings were instituted by a stockholder who asserted fraud, abuse of trust, and misappropriation of corporate funds, and whose complaint was held to sustain equitable jurisdiction to reform the abuses complained about, even to the extent of winding up, if necessary, the affairs of the corporation. The case at bar, however, requires, in our opinion, the application of the principles discussed and applied in Bank of Montreal v. Lumber Co., 90 Mich. 345, and this view denies to complainants the relief they ask for.

The decree is affirmed, with costs to appellee.

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


text:
    MAYOT v. AUDITOR GENERAL.
    1. Taxation — Sales — Decree — Jurisdiction — Collateral Attack.
    A decree for the sale of land for taxes, founded on proceedings by which the court obtained no jurisdiction, may be collaterally attacked.
    2. Same — Assessment—Sufficiency of Description.
    Section 16 of the general tax law of 1882 (Act No. 9, Pub. Acts 1882) did not render the assessment of land by lot and block number sufficient, where there was no known plat by which the land intended could be located, and the reference to the plat pointed to no source of information which would enable the owner to locate the land.
    8. Same — Assessment—Payment on Erroneous Description— Estoppel.
    Payment by the owner, of taxes assessed to him by an erroneous description of the land intended to be covered, does not estop him from claiming that taxes previously assessed in like manner, as against an unknown owner, and returned unpaid, are invalid.
    4. Same — Assessment—Description of Lands — Sufficiency.
    A description of lands by lot and block number of a certain addition, of which no plat was in existence, of which the city comptroller testifies that even by the aid of a plat made long afterwards he could not locate the lot except by the aid of a reference to some deed which would aid in fixing the location, is not sufficient to make taxes assessed thereon a lien on the lot intended.
    Appeal from Bay.; Shepard, J.
    Submitted April 27, 1905.
    (Docket No. 188.)
    Decided June 29, 1905.
    Bill by Charles Mayot and Salmey Mayot against Perry F. Powers, auditor general, to set aside a sale of land for taxes. From a decree for complainants, defendant appeals.
    Affirmed.

      Elbert V. Ingersoll, for complainants.

      John E. Bird, Attorney General, and Brakie J. Orr, Prosecuting Attorney (Charles W. McGill and George L. Hauser, of counsel), for defendant.
   Montgomery, J.

On the 28th day of February, 1874, complainant Charles Mayot acquired title by deed from William Daglish and Mary Ann Miller to a piece of land, 100 feet by 150 feet, in section 33 of town 14 north, of range 5 east, in Bay county. In 1885, the title was by appropriate conveyance vested in complainants as tenants by the entirety. During the years 1874 to 1885, inclusive, Charles Mayot was assessed with the taxes on lots 8 and 9, block 4, Mary Ann Miller’s Addition to the city of Bay City. It is apparent that the assessors of Bay City, in assessing Mr. Mayot with this description, intended to cover the above-described property purchased of William Daglish and Mary Ann Miller. During the same years —that is, from 1874 to 1885, inclusive — the taxes on lot 10, block 4, Mary Ann Miller’s Addition, were not paid. The taxes on this lot were assessed from 1875 to 1882, inclusive, in the name of “Non Resident,” and from.1883 to 1885, inclusive, in the name of Mary Ann Miller. The taxes for the years 1875 to 1881, inclusive, on lot 10, block 4, Mary Ann Miller’s Addition, were rejected, and reassessed, with the taxes of 1882 and 1883, so that the lot is delinquent for the taxes of the years 1882, 1883, 1884, and 1885. - During the years 1886 to 1894, inclusive, a change in the description took place, and Charles Mayot was assessed with the taxes on the description “lots 9 and 10, block 4, Mary Ann Miller’s Addition,” and the taxes so assessed were paid by the complainants and appellees. It appears from the record that Mr. Mayot is a foreigner, and unable to read English, and that he was not aware of this change in description in 1886. In the year 1894 there was another change in description, and Mr. Mayot was assessed with the taxes on the following description:

“A piece of land 100 feet wide north and south, hounded east by Fitzhugh St., south by a line parallel to 25th St., and 150 feet north therefrom and west by Johnson and Lewis Second Addition” (Mary Ann Miller’s Addition).

Mr. Mayot has paid- the taxes assessed on this description from 1894 to the present time. The above description covers the same property as the description in the deed from William Daglish and Mary Ann Miller to Charles Mayot, spoken of heretofore. It therefore appears that Charles Mayot has paid, or caused to be paid, the taxes on two lots for nearly 30 years, under three different descriptions: From 1874 to 1885 on lots 8 and 9, block 4, Mary Ann Miller’s Addition; from 1886 to 1893' on lots 9 and 10, block 4, Mary Ann Miller’s Addition; and from 1894 to the present time on the mete and bound description given above, which correctly describes the property owned by the complainants and appellees. In the year 1887, lot 10, block 4, Mary Ann Miller’s Addition, was sold to the State for the taxes of the year 1885, and in 1901 the same lot was sold to the State for the taxes of the years 1882, 1883, and 1884. The lot now stands on the State list subject to the payment of approximately $150, of which $31.54 is the amount of the original taxes, the remaining sum consisting of interest and other charges. In the year 1903 the complainants desired to sell their property, and for the first time became aware of the cloud on their title caused by the nonpayment of the taxes for the years 1882, 1883, 1884, and 1885 on the so-called lot 10, block 4, Mary Ann Miller’s Addition. It appeared that Charles Mayot had been assessed with and had paid the taxes on lots 9 and 10, block 4, Mary Ann Miller’s Addition, from 1886 to 1894, and this fact raised the apparent cloud on their title. It appears that no plat of Mary Ann Miller’s Addition was recorded, and that no map or plat of the same was extant up to 1894, when the city engineer undertook to make a plat, being guided by conveyances which had been made by Mary Ann Miller, but to the general public the location of lot 10, block 4, was, prior to 1894 at all events, unknown. The city-comptroller testifies that he could now only locate it by reference to some deed of conveyance calling for its location by metes and bounds. He also testified that prior to 1894 there was not sufficient common knowledge of the so-called Mary Ann Miller plat to enable a person to correctly locate lots thereon. This suit was instituted in the court below for the purpose of setting aside the taxes for the years 1882, 1883, 1884, and 1885 on the so-called lot 10, block 4, Mary Ann Miller’s Addition, and canceling the sales of the said lot to the State as a cloud on the title of complainants to the property originally purchased from William Daglish and Mary Ann Miller. The court below entered a decree setting aside tho taxes and canceling the sales. Defendant appeals, and presents the single question whether the complainants are so far bound by the description of the land in the assessment as made that they cannot, after a decree against the land, attack such decree.

It is settled that, if the court obtained no jurisdiction in the tax proceeding, the decree is open to attack. Rumsey v. Griffin, 138 Mich. 413. If the only notice of the chancery proceedings failed to, describe the land sufficiently, it is clear that no jurisdiction was obtained. It follows that the question which is vital is whether the description of this land as lot 10 of block 4 was sufficient.

The case is unusual in one respect. It is clear that these complainants have in fact been misled by these descriptions, and that they have paid their taxes assessed against them upon descriptions intended to cover this land, regularly and promptly. And yet the State is here insisting that this additional tax should remain a lien upon this land, relying upon a contention that the description employed was technically permissible, even though it in fact misled the complainants. It is obvious that it is inequitable that complainants should be compelled to pay taxes on one-half of this property a second time as a result of an error in description which was admittedly the primary error of the assessing officer. However, if the property described as lot 10 was properly so described, the contention of the State must prevail.

The statute under which these assessments were made, being the general tax law of 1882, contained two provisions in section 16 which bear upon the question, viz., subdivisions 4 and 6. These two subdivisions read as follows:

“ Fourth. In cases of lands platted or laid out as a town, city or village, or as an addition to a town, city or village, the same may be described by reference to such plat and by the number of the lots, and blocks thereof, whether such plat be recorded or not. * * *
“Sixth. Lands may be designated by any description hy which they may be known.” Act No. 9, Pub. Acts 1882.”

Can it be said that this land was platted or laid out within the meaning of the first subdivision ? There is no record of any plat. Record was not essential. But more than this, there was no known plat by which the land intended by lot 10 could be located. The bill so avers the fact, and the testimony supports it. The plat appeared upon no map of the city. There was no copy of the plat in any office of the city. The reference to the plat pointed to no source of information, and none was open to the owner which would enable him to locate the land.

Some stress is laid upon the fact that later, when the complainant’s lands were assessed as lots 9 and 10, he paid the taxes on them. No estoppel arises from this act. If an estoppel could be claimed, it would be as effective against the assessing officers who assessed the land as lots .8 and 9 for many years.

It is true the payment of the tax on lot 10 may be considéred as some evidence that complainant knew its location, but the evidence of complainant negatives any inference which may be drawn from it. He caused the taxes to be paid upon the property assessed in his name, and did not trouble to read the description. Was the land designated by any description by which it was known ? It is clear that this question should be answered in the negative. The city comptroller testifies, as before stated, that even now, with the aid of a plat made long after (1894), he could not locate this lot except by the aid of a reference to some deed which would aid in fixing the location. Within the rule laid down in Jackson v. Sloman, 117 Mich. 126, this description was insufficient.

The decree will be affirmed.

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


author: • Montgomery, J.

text:
    WOOD v. O’CALLAGHAN.
    Account Stated — Action—Instructions.
    In. an action on an account stated, brought on the theory that defendants agreed to make up to plaintiff the difference between the cost and selling price of certain stock, which defendants denied, instructions examined, and held, not subject to the criticism that by them the jury were told that plaintiff could not recover unless the parties agreed upon the amount in figures.

    Error to Dickinson; Stone, J.
    Submitted April 28, 1905.
    (Docket No. 120.)
    Decided June 29, 1905.
    Assumpsit by John B. Wood against John O’Callaghan and Patrick Flanagan on an account stated. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      H. O. Young, for appellant.

      JR. C. Flannigan, for appellees.
   • Montgomery, J.

Before and during the summer and fall of 1890, the Laing Lumber Company, a corporation, was conducting a general lumbering business at Sagola, in the county of Dickinson, Mich. The company was capitalized at $60,000, and its entire stock was owned by W. S. Laing, John Perkins, Mr. Wood, and the defendants. The company was organized by Mr. Laing and-the defendants, who subscribed for the entire stock. Mr. Perkins acquired his stock by purchase from the defendants. Mr. Wood purchased his stock in part from Mr. Laing, and in part from Mr. O’Callaghan. During the summer and fall of 1890 the company was “pretty hard up.” It was indebted to the First National Bank, of Iron Mountain, Mich., of which Mr. Wood was president, and Mr. Laing and Mr. Perkins were directors, for money loaned; it could not meet the payments on its stumpage contracts as they matured; it had no available funds; its stock was full paid, and overpaid $4,000, and was not subject to assessment. It was desired by the stockholders that a shift of some kind should be made to relieve the situation, and, at Mr. Wood’s request, Mr. O’Callaghan opened negotiations with a party of gentlemen, called in the record the “ Wittenbergs,” which culminated about December 17th in a transfer to the Wittenbergs of the stock of the company theretofore owned by Mr. Laing, Mr. Perkins, and Mr. Wood, except 35 shares which went to the defendants.in order to make their holdings in the company equal to the Wittenbergs, and the taking over by the Wittenbergs of the $25,000 loan of Mr. Wood’s bank to the Laing Lumber Company. The price which the Wittenbergs paid for Mr. Wood’s stock was less than the same stock cost Mr. Wood, and his claim in this suit is that the defendants, who continued in the company, promised they would make him good in a year from that date for the difference between the cost of the stock to him and the selling price of the stock to the Wittenbergs, and would give him a note for the amount of such difference, payable in one year, with 7 per cent, interest. This claim was denied in every particular by the defendants, and so the controversy went to the jury, who found for the defendants. The plaintiff brings error, alleging as a single ground that the circuit judge erred in charging the jury that “in order for the plaintiff to recover it must not only appear that the contract was made, but that the defendants, O’Callaghan and Flanagan, understood the amount for which they were to give their note.”

That the precise point may be understood, it should be stated that the declaration contained no special count, and it appears to be conceded that the plaintiff, if entitled to recover at all, was restricted to the count on an account stated. It is assumed that the language of the charge excepted to conveyed to the jury the thought that, before there could be an account stated, the parties must have agreed upon the amount thereof represented by figures, and it is contended that this was an error; that it is sufficient to constitute an account stated if the items constituting the account are settled upon so that nothing remains but a mere matter of computation. If we accept this as stating the correct rule — and it is not questioned by defendants’ counsel — we are convinced that the language employed by the circuit judge, when read in connection with other portions of the charge, and when applied to the facts in the case, could not have been intended as laying down a different rule, nor could it have been so understood by the jury. An examination of the record shows that there was no claim made by any one in the case that the figures were agreed upon by the parties. The plaintiff himself testified that the amount was not figured up, but the theory of his case was that defendants knew the cost of the stock to him and the price paid by the Wittenbergs, and agreed to give their note for the difference. The defendants, on the other hand, denied having made the agreement to save plaintiff from loss, and also denied having had knowledge as to what plaintiff paid for his stock. The case was permitted to go to the jury, which would not have been permitted had the circuit judge intended the language quoted as construed by plaintiff’s counsel.' This language should be construed in connection with and as having reference to the controverted question submitted to the jury. As so construed, it is clear that the jury would understand that what was required was that the defendants must, before they could be charged as upon an account stated, have had knowledge of the facts which fixed, or would enable them to fix, a definite amount.

The following extracts from the charge show that the view of the circuit judge was made clear to the jury:

“ The plaintiff claims, as I understand it, that this sum is due him by reason of an agreement which he claims was made between him and the two defendants, in and by which they agreed to pay him the loss which he had sustained by a sale of his capital stock in the Laing Lumber Company to the Wittenbergs, and that loss was the difference between what his stock had cost him and the amount it was sold for to the Wittenbergs — I don’t know any better name than ‘the Wittenbergs;’ I think the jury will understand me. Now, that is the claim of the plaintiff, gentlemen.
“You have listened to the testimony in this case, and it is for you to say whether such an agreement and contract was ever entered into between the plaintiff and the defendants. On the one hand, the plaintiff asserts that such an agreement was made; on the other hand, the defendants deny that such an agreement was ever made.
“In order for the plaintiff to recovera verdict here, you must find that such an agreement was made between the parties; that their minds met upon that proposition; that the defendants, O’Callaghan and Flanagan, were to pay this difference, amounting, as the plaintiff claims, to $2,455.49 at that time, and that they were to give him their promissory note due in one year, at 7 per cent., which the plaintiff says was never given or done, and that no part of it has ever been paid. Now, gentlemen, in order for the plaintiff to recover, as I said, it is necessary that you should find this contract — this agreement; it was not in writing; it was not claimed to have been in writing; it is not necessary that it should have been in writing, but there should have been an agreement, an understanding, a bargain, a contract, in which the minds of the parties met, so that they both understood the transaction; or, if their minds did not meet, that these defendants so talked and acted and conducted themselves as. to lead the plaintiff to believe that they were to pay it.
“Nobody denies but that it was desirable at that time that the Wittenbergs should come into the-institution, the corporation, by the purchase of a quantity of this stock— we will say one-half. That the evidence shows, substantially — they were to become the purchasers of one-half of this stock. The question is, Was there a bargain made by which these defendants agreed to pay to Mr. Wood, the plaintiff, this difference? That is the question.”

Then follows the language excepted to, and this is followed by further instructions as follows:

“If you find the plaintiff entitled to recover, you will say in what sum, and whatever sum you find, you will add interest to it at 6 per cent, for 9 years and 24 days. The recovery cannot exceed the amount claimed by the plaintiff — $2,455.49. You may look it over, and if you say that the plaintiff is entitled to recover by a preponderance of the evidence, but a smaller sum than that, you will make the sum whatever it should be under the testimony.
“There is no claim here on the part of the defendants for any lesser sum in figures. There is a denial that any such agreement was made, and the further claim that they never knew the amount, for which a note was to be given even. They deny that they ever agreed to give any such note. Your verdict, if for the plaintiff, will be,, ‘ We find for the plaintiff in such a sum.’”

We think these instructions must have been understood as presenting the question of fact as to which version was truthful — that of plaintiff or that of defendants — and could not have misled the jury.

Judgment affirmed.

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


text:
    KINGSTON v. SCHOOL DISTRICT NO. 5 OF DECATUR TOWNSHIP.
    Schools — Teacher’s Contract — Construction.
    Under a teacher’s contract providing that she should teach the winter term at a stipulated salary, and also the spring term “providing satisfaction is given the school board,” the board had a right to say whether she should teach the spring term, and, she having been notified of their determination not to employ her before time for the term to commence, she could not recover her salary, though before notice she had taught one day under a claim that the spring term had begun.
    Error to Van Burén; Carr, J.
    Submitted April 28, 1905.
    (Docket No. 122.)
    Decided June 29, 1905.
    Assumpsit by Angie E. Kingston against school district No. 5 of Decatur township upon a teacher’s contract. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Barnard & Lewis, for appellant.

      Thomas J. Cavanaugh, for appellee.
   Moore, C. J.

This action was brought against the defendant to recover damages for a claimed breach of a contract, the material parts of which read:

It is hereby agreed, by and between the district board of school district number five in the township of Decatur, county of Van Burén and State of Michigan, for and on behalf of said district and Angie Kingston of the village of Hartford in the county of Van Burén and State of Michigan, a legally qualified teacher in said county of Van Burén, that the said Angie Kingston shall teach the fall term of school of said district for the term of two months commencing on the second day of September, in the year nineteen hundred two, for the sum of twenty-eight dollars per month, to be paid as hereinafter specified. * * *
* ‘ The said Angie Kingston further agrees to teach the winter term of three and one-half months at $28 per month, to be paid at the close of each school month. * * *
“ The said Angie Kingston also further agrees to teach the spring term of two and one-half months at $28 per month, to be paid at the close of each school month, providing satisfaction is given the school board.”

Miss Kingston taught and was paid for the fall and winter terms. It is her claim that she entered upon the spring term, teaching one day, and held herself in readiness to teach the balance of the term. It was the claim of defendant that the district and the school board were not satisfied with her teaching, and declined to have her teach the spring term. She brought suit to recover her wages for the spring term. The circuit judge directed a verdict in favor of defendant. The appellant brings the case here by writ of error.

According to the testimony of the plaintiff on cross-examination, she closed her winter term on "Wednesday, and commenced the spring term on the following Monday. She testified they were to have a two-weeks vacation, but, because they had so much vacation in the fall and winter, the board told her she better have only two days’ vacation ; that she began the school the next Monday, but was not allowed to teach any longer. It is the claim of the defendant that a special meeting of the district board was held on Monday evening following the close of the winter term, at which all of the members of the board were present, a part of the record of which meeting reads:

“All members of the board being present, meeting was called to order by the moderator at 7:30 p. m. The services of Miss Angie Kingston not having in the past been satisfactory to the district board, it i,s moved by John W. Lewis, supported by B. W. Clark, that she be not hired to teach the spring term of school, and her services from now on be dispensed with. Motion put, all members of the board voting yes.”

It is also claimed that Miss Kingston was present at this meeting, notice having been given her, and that it was held before it was time to begin the spring term.

Counsel for plaintiff say:

“We contend that the only rational construction to be given the contract is that the school board meant to hire the plaintiff for the definite time of 2% months (or the spring term), providing she gave satisfaction during the preceding fall and winter terms; therefore the contract is not the same as though the party was hired for four months providing they gave satisfaction.”

They also say:

“We contend that a school teacher is not on the same footing with a menial servant, and that a contract of this nature is against public policy. The contract of teachers is governed by statute, which provides what it shall contain, and it is not within the power of the school board to insert clauses of this nature. In Thompson v. Gibbs, 97 Tenn. 489 (34 L. R. A. 548), the court says:
“‘If school directors can legally import into their contracts of employment of public teachers a clause such as the one in question, this case illustrates the wrong and injustice which may be done under cover of law; and we agree with the solicitor of defendant that “ such an injustice should not be sanctioned by the courts unless the law clearly permits it. ” But independent of the injury that may be done to the individual, public policy would forbid the recognition of such power unless it is distinctly conferred by the statutes. As has been well urged, if school directors can provide, as in this case, for annulling contracts at the end of four months, they can also reserve the right to terminate them at the end of one month, or at their own pleasure.’ ”

They also say they are entitled in any event to recover for one day’s teaching. The last claim may be disposed of by saying it was not made in the court below.

We shall not attempt to discuss the propositions of counsel at length. It is impossible to read the record without reaching the conclusion that before the spring term should properly begin the school board was not satisfied with the work the teacher was doing, and did not desire her to enter upon the spring term, and so notified her. While the contract is not very well drawn, we think under its terms the school board had the right to say Miss Kingston should not teach the spring term, and that she had knowledge of their determination before the term should properly commence.

Judgment is affirmed.

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


author: Blair, J.

text:
    MURTA v. CARR.
    Officers — Books and Papers — Custody—Proceedings to Compel Delivery — Review by Certiorari — Statute.
    The proceedings provided by statute (§§ 9843-9851, 3 Comp. Laws) to compel delivery of books and papers by a public officer to his successor, are not adapted to a determination of the rights of contestants to an office, but are merely appropriate for ascertaining whether a petitioner is prima facie such an officer as entitles him to the possession of the books and papers of the office. After an adjudication of this question by a court of competent jurisdiction the defeated party cannot review the judgment by certiorari and thereby defeat the object of the statute, but must resort to quo warranto or other proceedings appropriate to try title to an office.
    Certiorari to Livingston; Smith J.
    Submitted April 28, 1905.
    (Docket No. 118.)
    Decided June 29, 1905.
    Proceedings by Daniel W. Murta against Warren A. Carr to compel the delivery of certain books and papers belonging to the office of school trustee. There was an or•der compelling delivery, and respondent brings certiorari.
    Writ quashed.

      William P. Van Winkle, for appellant.

      Shields & Shields, for appellee.
   Blair, J.

This suit was commenced in the circuit •court for the county of Livingston under the provisions of •3 Comp. Laws, chap. 272, §§ 9843-9851. This statute provides:

“Whenever any person shall be removed from office, -or the term for which he shall have been elected or appointed shall expire, he shall, on demand, deliver over to his successor all the books and papers in his custody as such •officer,” etc.

School district No. 2 of the township of Putnam, Livingston county, Mich., is a graded school district under the provisions of the general school law of the State of Michigan. The annual school meeting in said school district was held on July 11, 1904. At that time there were to be elected two trustees.for the term of three years, and two trustees to fill vacancies for the term of two years.. The said school meeting elected four men trustees, without designation as to which two were for full term (three years), or which two were to fill vacancies (two years). Respondent, Warren A. Carr, was elected a trustee of said school district for a full term of three years at the regular annual school meeting in said district held July 11, 1901, and therefore his term of office naturally expired July 11, 1904; and he was as such trustee the director or secretary of the board on the 11th day of July, 1904, having been chosen in due form by the said board of trustees to act in that capacity. The petitioner, Daniel W. Murta, is one of the four men indiscriminately elected at this annual school meeting of July 11, 1904, and claims to be the successor of the said Warren A. Carr, and instituted these statutory proceedings to obtain possession of the books •and papers belonging to the office. The case was argued before the judge of the circuit court for the county of Livingston, who, after hearing the argument, filed his opinion and made his order in the said cause, wherein he granted the prayer of the petitioner, and found that the said Daniel W. Murta was prima facie entitled to the office, and directed the said "Warren A. Carr to turn over the books and papers to the said Murta within 10 days. The proceedings were removed to this court for review by writ of certiorari.

Respondent contends that the judgment is erroneous, because:

First. The statute above referred to does not apply to the case, but proceedings should have been instituted in the nature of a quo warranto.

Second. It clearly appears from the minutes of the sch ool meeting that said Murta was not legally elected, for the reason that the electors did not designate which of the four officers were elected to fill vacancies and which were elected for the regular term.

Counsel for petitioner contend that the order of the circuit judge cannot be reviewed in this court upon certiorari. We think this contention 'must prevail. This court held in Curran v. Norris, 58 Mich. 512, that:

“ It is of the utmost importance to'the public that the officers elected or appointed by proper authority should at once receive from their predecessors in office the books and papers appertaining thereto, and this statute was enacted to compel such delivery. Proceedings under it are summary, and it is not contemplated that they will be delayed by writs of certiorari to review the proceedings of the judge or commissioner, unless such officer has proceeded without jurisdiction or has acted in gross violation of the statute.”

The statute in question is not adapted to a determination of the rights of contestants to an office, but is appropriate for ascertaining whether a petitioner is prima facie such an officer as to entitle him to the possession of the books and papers of the office. After an adjudication of this question by a court of competent jurisdiction, the defeated party cannot review the judgment upon certiorari and thereby defeat the object of the statute, but must resort to proceedings in the nature of quo warranto, or to some other appropriate action to try title to the office.

The writ is quashed, with costs to the appellee.

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


text:
    LAPPAN v. GLUNZ.
    Party-Walls — Possession—Agreement—Construction.
    A party-wall agreement containing a covenant for peaceable possession in the builder, until such time as the co-owner shall make use of it in the construction of a building, does not entitle the builder to such absolute possession as will prevent the co-owner from using his side of the wall for advertising purposes.
    Appeal from Wayne; Donovan, J.
    Submitted May 2, 1905.
    (Docket No. 125.)
    Decided June 29, 1905.
    Bill by Ellen M. Lappan against Frederick C. Glunz . to restrain the use of a party wall for advertising purposes. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Dohany & DoTiany, for complainant.

      Barbour & Field, for defendant;
   Blair, J.

The complainant is the owner of the east half of lot No. i, of block No. 2, of the Labrosse farm, in the city of Detroit. Lot No. 4 lies on the north side of Michigan avenue, between Fifth and Sixth streets, and the front 60 feet of it is occupied by a double brick building three stories high.- The ground floor of the building is divided into two stores, and the upper floors are flats occupied for dwelling house purposes. The east half of lot 4 is known as No. 316 Michigan avenue. The defendant occupies a building at 310 Michigan avenue which is three doors east of the complainant’s building, and he also occupied the vacant space between 310 and 316 Michigan avenue, excepting a small brick coal office adjacent to 316 Michigan avenue. The defendant leases the above premises from the Christopher F. Huiss estate, and conducts a secondhand furniture and store fixture business. The east wall of complainant’s three-story building is one foot thick, one-half of which occupies the east six inches of complainant’s lot No. 4, and the other half of which occupies the west six inches of lot owned by the Huiss estate and leased to and occupied by the defendant. Prior to the construction of complainant’s building, in 1878, an agreement was entered into, in writing, between Daniel Sullivan, now dead, who was complainant’s father, and the preceding owner of lot 4, and Christopher F. Huiss, the owner of lot 5, wherein it was agreed:

“This Indenture made the 15th day of August, A. D. 1878, by and between Daniel Sullivan, of the first part, and Christopher F. Huiss, of the second part, both of the city of Detroit, Wayne county, Michigan.
‘ Whereas, said first party owns lot four and said second party lot five of block two, Labrosse Farm, on the north side of and abutting Michigan Avenue, in said city, county and State; and the said first party desires to construct a brick building upon his said lot and place one-half in thickness of the easterly wall thereof on the said lot of said second party, so that said wall will be in effect a partition wall between said parties and said lots, and both parties agreeing to all matters in the premises.
“Now, thorefore, this indenture witnesseth:
“First. In consideration of the privilege of building as hereinafter stated on said second party’s lot, the first party hereby covenants and agrees to forthwith construct a good and substantial brick building, 65 feet, more or less, in depth, on his said lot, having an easterly side wall one foot in thickness, one-half of such wall to be on each of the said lots, one-half foot each way from the boundary line; that such construction shall be wholly at his expense, and that said second party shall have, his heirs, representatives, executors and assigns, the full undivided ownership of one-half of said wall, with all the rights for building purposes usually pertaining to partition walls; also that in case of the destruction or removal of said wall, the land of said second party covered thereby and the possession thereof shall revert to and belong to said second party, his heirs, representatives, executors and assigns, and they shall respectively have the right to assume and take the same as if this instrument had not been executed.
Second. In consideration of the construction of said building by said first party, said second party hereby covenants and agrees that said first party may have peaceable possession of the westerly half foot of said lot for the depth of said building, measuring from the front line of said lot five (5) for the purpose of said building and wall, reserving to himself, however, his heirs, representatives, executors and assigns, the absolute right, in case of the destruction or removal of said building or wall, to immediately take possession of said half foot or strip of land, and control the same as if this indenture had not been executed.
“ Third. It is mutually covenanted and understood that said wall, when constructed and as it progresses in construction without expense to said second party, his heirs or representatives, shall be the common property of both of said parties in equal proportions, and that said second party, his heirs and representatives, shall have full and unquestioned right to build thereto, and use the same according to the custom of partition walls.”

Prior to the filing of complainant’s bill in this cause, the defendant leased a portion of the east face of the wall to Pleischmann & Co. for advertising purposes, and threatened tp place other advertising signs upon other portions thereof. Complainant filed her bill, praying for an injunction restraining the defendant from painting or causing to be painted any sign, color, advertisement, etc., on the wall, for the reason that the painting of signs on the east wall greatly depreciated the rental value of her store and flats, thereby damaging her property in the sum of not less than $300. After issue had been joined and the case brought on for hearing, for the purpose of expediting the settlement of the parties’ rights to the space on the wall, a stipulation was filed therein, and, after argument by counsel, a decree was entered dismissing complainant’s bill. The object of'the stipulation was to bring before the court the single question as to whether the complainant, under the agreement entered into in 1878, is entitled to the possession of the easterly half of the east wall of her building, to the extent that no person can paint signs thereon.

Complainant’s counsel contend that the covenant for peaceable possession in the agreement entitled the complainant to the absolute, uninterrupted possession and control of the entire wall until the party of the second part made use of it in the construction of a building on the adjoining premises. We do not agree with this construction of the agreement. In our opinion, the general scope of the agreement is expressed in the last clause: “ That said wall, when constructed and as it progresses in construction * * *, shall be the common property of both of said parties in equal proportions, and that said second party, his heirs and representatives, shall have full and unquestioned right to build thereto, and use the same according to the custom of partition walls.” The bill of complaint alleges, as to the character of the intended sign, “ that the said defendant threatens to paint a large sign on the front 30 feet of the east side of your oratrix’s said wall, advertising his secondhand store fixtures, furniture, etc., for sale.” The stipulation of facts contains the following statement, viz.:

“ That defendant has used the outside wall for advertising purposes of his business, and has leased part' of the space to Fleischmann & Co. and others, for advertising purposes, for the past nine years. That there are no windows or openings in the wall. That complainant and her grantors have never made a claim to said outside wall to defendant until about January 1, 1903, or claimed that said defendant had no right to use said outside wall for advertising purposes, as tenant of said Huiss estate, or otherwise.”

So far as appears, therefore, the proposed advertising signs would contain nothing in themselves of which the complainant would have a legal right to complain, and, in our opinion, the defendant had a right, under the agreement, to use the east face of the wall for proper advertising purposes. Shiverick v. Gunning Co., 58 Neb. 29.

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

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