author: McAlvay, J.

text:
    REED v. WHIPPLE.
    1. Judgment —Res Ad judicata — Wills — Undue Influence — Gift Causa Mortis. '
    An adjudication that a will made on the 2d of May was brought about by the undue influence of the principal legatee was not res judicata as to the question whether certain property of the testator, delivered by him to such legatee on May 8th, was a valid gift causa mortis.
    2. Trial — Appeal from Probate Court — Findings of Fact— Sufficiency.
    Where, on appeal from probate court, the circuit judge finds that another party has also filed a claim and notice of appeal, but has not perfected it, and sets up in his findings the substance of the claim so far as is material to the contentions of the parties, it is not error to refuse an amended finding making the claim and notice of appeal an exhibit:
    8. Same — Oonolusiveness.
    It is not error to refuse a finding of fact in effect deciding the case in favor of the party requesting it where the opposite finding is supported by the evidence.

      4. Executors and Administrators — Gifts Causa‘Mortis — Certificates of Deposit — Indorsement—Special Administrator.
    Where, shortly before his death, the owner of certificates of deposit and a bank book indorsed them for the purpose of making a gift causa mortis, and, on the special administrator attempting to collect them, the bank having been notified by the heirs not to pay them, refused, as a precautionary measure, to pay them unless the special administrator would indorse them as such, his act in so indorsing them was not conclusive that they were the property of the estate.
    5. Saving Questions for Review — Production of Books.
    A complaint that the court erred in ruling that an administrator need not produce his books on settlement of his account is not sustained by the record, where it appears that, on cross-examination, he said he would produce them if necessary, and the court suggested that the law provided how to get them into court, and stated that he doubted his authority to order them in in the then state of the case.

      6. Witnesses — Matters Within Knowledge of Deceased.
    One who claims that certain certificates of deposit in the name of the decedent were hers by reason of a gift causa mortis is not prohibited from so testifying by the statute (§ 10212, 3 Comp. Laws) on an issue between the heirs and the administrator as to whether they should have been included in his account as assets of the estate.
    7. Harmless Error — Evidence—Case Tried to Court.
    Error in striking and refusal to strike immaterial testimony does not prejudice in a case tried to the court.
    8. Appeal — Probate Court — Administrator’s Account — Questions Considered.
    Appeal from the order of the probate court allowing the final account of an administrator, brings the whole account before the circuit court, and, no appearance being entered in probate court, appellant may raise questions not raised and passed upon there though his attorney was present.
    Error to St. Clair; Law, J.
    Submitted January 17, 1905.
    (Docket No. 56.)
    Decided May 12, 1905.
    Benjamin R. Whipple, administrator of the estate of Frank Whipple, deceased, presented the final account of his intestate as special administrator of the estate of Peter W. Reed, deceased. The account was allowed in the probate court, and Robert H. Reed and another, heirs, appealed to the circuit court. There was judgment at the circuit affirming the order of the probate court and dismissing the appeal, and appellants bring error.
    Judgment affirmed, and order dismissing appeal reversed.

      H. W. Stevens and George G. Moore (Stevens, Graham & Stevens and W. T. Mitchell, of counsel), for appellants.

      Phillips & Jenks, for appellee.
   McAlvay, J.

Frank Whipple, deceased, was during his lifetime special administrator of the estate of Peter W. Reed, deceased. Benjamin R. Whipple, as administrator of the estate of his father, Frank Whipple, special administrator as aforesaid, deceased, presented the final account of such special administrator of the estate of Peter W. Reed, deceased, to the probate court of St. Clair county for hearing and allowance. The usual statutory notice was given, and a hearing upon such final account was had, no one appearing in opposition thereto. This final account was allowed October 28, 1901.

From this order R. H. Reed and Annie Smith, two of the heirs of Peter W. Reed, appealed to the circuit court for St. Clair county, for the following reasons:

1. That said account does not account for all the property that came into the hands of said Frank Whipple as special administrator of the estate of said Peter W. Reed, deceased.

2. That there was in the hands of the said Frank Whipple the sum of $3,400 belonging to the estate of Peter W. Reed, deceased, which has not been accounted for.

3. That all the rents collected by said Frank Whipple as such special administrator have not been accounted for, and other property.

The appeal was heard before the circuit court without a jury, and, upon request of both parties, the circuit judge found the facts and his conclusions of law as follows:

“ Findings of Fact.
“1. Peter W. Reed deceased at his residence in the city of Port Huron, on the 9th day of May, 1898.
“2. On Sunday, the 8th day of May, 1898, Peter W. Reed was seriously ill. On that day he directed one Hannah Waters to procure for him from his safe in the room two certificates of deposit, both issued by the Port Huron Savings Bank to him. One of these certificates was numbered 7,053, dated June 18, 1897, for $1,000; the other was numbered 7,123, dated March 2, 1892, for $1,200. He also at the same time directed the said Hannah Waters to procure for him from said safe a bank book representing a savings deposit in the Commercial Bank of the city of Port Huron of about $1,200. The said Hannah Waters procured these certificates and savings bank book from the safe, and handed them to him as he had directed.
“3. Immediately after Peter W. Reed received these certificates of deposit and the savings bank book, he indorsed the said certificates in blank, and also wrote the following on the back of the savings bank book:
“ ‘ John Porter : Please sign the amount of this book to Miss Hannah Waters.
“ ‘P. W. Reed.’
“John W. Porter at this time was the cashier of the Commercial Bank.
“ 4. After indorsing the certificates of deposit, and writing the words above quoted on the savings bank book, Peter W. Reed delivered the certificates and bank book to Hannah Waters, and said:
‘ ‘ ‘ This is all the money I have. I don’t think I can get better. If I do, I want you to give them back; if I do not, they are yours. Take them down to the bank in the morning and have them renewed to you. I want you to take them and take care of yourself and the baby, and if I get better I want you to transfer them back to me.’
“5. In the afternoon of the same day Frank Whipple called in to see Peter W. Reed, for whom he had been acting as counsel, and Mr. Reed informed him of what he had done in the morning, and stated to Mr. Whipple, in the presence of Hannah Waters, that he thought it would be best for him to take the certificates of deposit and the bank book down in the morning and have them renewed to Hannah Waters and then brought back. They were then handed to Mr. Whipple by Hannah Waters. The certificates'of deposit remained in the possession of Mr. Whipple from this time until July 20, 1899, and the savings bank book until June 21, 1901. On May 2,1892, Peter W. Reed had made a will, in which the greater part of his property had been left to Hannah Waters and to her infant child, and in which Frank Whipple was named as executor. The heirs of Peter W. Reed contested this will. Pending the contest over the will, Frank Whipple was appointed special administrator of the estate of Peter W. Reed, deceased. On September 13, 1898, the will was allowed and admitted to probate by the probate court of St. Clair county. The heirs of Peter W. Reed appealed from the allowance of the will, and the will was set aside by a jury in the circuit court. This cause was taken to the Supreme Court on writ of error, where the verdict of the jury was sustained on December 21, 1901. [ Waters v. Reed, 129 Mich. 131.] Frank Whip-pie deceased on August 1, 1901, and Benjamin R. Whipple, his administrator, filed the present account, which was allowed by the probate court on September 28, 1901.
“6. On the 20th day of July, 1899, Frank Whipple presented the certificates of deposit heretofore described at the Port Huron Savings Bank, and asked for payment. At this time the only indorsement on them was the name of P. W. Reed, the payee. The bank clerk or official to whom they were presented referred the matter to Mr. Harrington, the cashier of the bank, who examined them. Mr. Whipple at that time informed Mr. Harrington that they belonged to him. Mr. Harrington then said to him: ‘You are administrator, anyway, or special administrator.’ To this Mr. Whipple said, ‘Yes.’ Mr. Harrington then said, ‘ Then you better indorse them that way.’ Mr. Whipple then wrote his name on the back of each certificate, and wrote under each name, ‘ Spl. Admr.,’ meaning special administrator. The sums named on the face of the certificates, with interest on them, amounting to $2,288, were then paid to Mr. Whipple. It is a fair inference from Mr. Harrington’s testimony that he required this form of indorsement to be made by Mr. Whipple solely for the protection of the bank, and I find that such .was Mr. Harrington’s purpose in requiring indorsements in this form.
“7. On June 21, 1901, Mr. Whipple presented the savings bank book above described to the Commercial Bank, with the writing placed thereon by Peter W. Reed, and asked for $1,000 of the money represented by the bank book. Prior to this, and on March 24, 1900, the heirs of Peter W. Reed had caused a notice to be served on the Commercial Bank, notifying said bank not to pay out any money in its possession ‘ belonging either directly or indirectly to the estate of Peter W. Reed, to any person other than to some one duly authorized by the probate court of this county to receipt for the same. We call your attention particularly to the savings deposit of upwards of $1,200 claimed by Hannah Waters under an order of Peter W. Reed.’ By reason of this fact, when the bank book was presented, the bank officials declined to make payment to Mr. Whipple, unless he would produce a certificate of his authority as administrator of said estate, and receipt for the money in that capacity. This Mr. Whipple did, and $1,000 was paid to him. This method of making payment to Mr. Whipple was insisted on by the bank officials as a protection to the bank on account of the service on them of the notice above described.
“8. At the time of the presentation of the will of Peter W. Reed for probate, Mr. Whipple appeared as one of the attorneys for the proponent of the will, and, from that time up to the date of his decease, performed services in his effort to sustain the will, for which services no account was ever presented or claim made against the estate of Peter W. Reed. After the death of Mr. . Whipple a special administrator de bonis non was appointed for the Reed estate.
“9. After the death of Frank Whipple, on August 1, 1901, Benjamin R. Whipple, his son, was appointed as administrator of his estate, and as such administrator presented the final account of .Frank Whipple, as administrator of the estate of Peter W. Reed, deceased. In this account he did not include the moneys represented by the certificates of deposit or the savings bank book, nor was there any charge inserted on account of the services of Frank Whipple in connection with the Peter W. Reed estate, nor for any expenditure in connection with the litigation arising over the contest of the will.
“ 10. This final account now under consideration was duly published as the law requires, and prior to its allowance was examined in behalf of the heirs, who are the appellants in this case, by Mr. John L. Black, who was one of their attorneys during all the litigation, and who knew of the time when the account was set for hearing. Mr. Black was present in the probate court on the day this account was heard and during the hearing thereof, but interposed no objection to the account. At the time of the hearing there was no appearance on the part of any of the appellants, nor was there any contest made over the account, nor any request to have the account include the amount' of the certificates of deposit, or the amount drawn from the savings bank account, although at this time knowledge that Frank Whipple had procured the payment to him of the certificates of deposit and of $1,000 from the savings bank account was in the possession of all parties interested in the Peter W. Reed estate, and had been for some considerable time prior to the hearing on the account.
“ 11. On November 27,1901, Hannah Waters, as a devisee under the will of Peter W. Reed, filed in probate court a claim and notice of appeal from the order allowing the final account of Frank Whipple, presented by Benjamin R. Whipple, as administrator of Frank Whipple. Said claim and notice of appeal recites that the account omits the certificates of deposit and the savings bank account to which reference has heretofore been made. This appeal has not been perfected or taken to this court.
“ 12. As shown by the account filed by Benjamin R. Whipple, the estate of Peter W. Reed is solvent, and the proceeds of the certificates of deposit and of the savings bank are not required for the purpose of paying the debts of said estate.
“ I find that the indorsements of the certificates of deposit by Frank1 Whipple, as special administrator of the estate of Peter W. Reed, were made for the express purpose of satisfying a condition imposed by the Port Huron Savings Bank.
“14. I find that the giving of the receipt demanded by the Commercial Bank, by Frank Whipple, and the filing with said bank of a certified copy of the order appointing Frank Whipple special administrator, was for the same purpose as the indorsements of the certificates demanded by the Port Huron Savings Bank, and was entirely a matter of precaution on the part of the bank.
“15. I find that the issues sought to be presented to this court on this appeal were not presented to the probate court, nor was any opportunity given that court to pass on them; no objection is urged here to the account as allowed by the probate court, except the failure to include the amount of the certificates of deposit, and the amount as shown by the savings bank book in said account, as a part of the assets of the estate of Peter W. Reed.
“Conclusions of Law.
“1. The estate of Peter W. Reed had no right, title, or interest in and to the certificates of deposit in the Port Huron Savings Bank before the same were paid to Frank Whipple, and the fact that he indorsed them as special administrator of said estate and received the money thereon did not operate to vest or place the title of said certificates or their proceeds in the estate, nor did it create an estoppel such as would prevent the said Frank Whipple or Hannah Waters from retaining the proceeds thereof. Neither does the claim of appeal from the order of the probate court allowing this account filed in probate court have any such effect.
“2. The estate of Peter W. Reed had no right, title, or interest in or to the moneys represented by the savings account in the Commercial Bank, and said money was not, after the death of Peter W. Reed, a part of his estate. The acts of Frank Whipple in signing a receipt at the bank as special administrator, and in filing a certified copy with the bank of his appointment as special administrator of the Reed estate, where he received $1,000 of this money, did not operate to vest the title to this savings bank account in said estate, neither did it operate as an estoppel to prevent Frank Whipple or Hannah Waters from claiming the amount thereof. Neither does the claim of appeal filed in the probate court by Hannah Waters have any such effect.
3. I further find that the issues here sought to be tried are presented for the first time in this court, not having been raised or tried in probate court, and, in consequence, the trial in this court is not upon appeal.
“Asa result of the above findings of fact and conclusions of law, this attempted appeal must be dismissed, and the order of the probate court allowing the account affirmed, with costs to appellee. An order may be prepared certifying this determination to the probate court.”

Appellants proposed certain amendments to the findings of fact which were not allowed, to which appellants excepted, and exceptions were also taken to the findings of fact and conclusions of law hereinbefore set forth. Upon these exceptions errors are assigned, and also as to certain rulings of the court during the progress of the trial. The errors assigned will not be considered in their order, but will be grouped and considered as they more naturally arise in the consideration and discussion of the case.

Appellants came from probate court to the circuit court, appealing from the order allowing the final account of the special administrator, alleging three specific reasons:

1. That all the property was not accounted for.

2. That the sum of $3,400 in the hands of the special administrator was not accounted for.

3. That all rents collected .and other property were not accounted for by him.

Upon the hearing the only testimony offered by appellants was with reference to the $3,400 mentioned in the second reason given. This was the money represented by the two certificates of deposit and the savings bank book, all claimed by Hannah Waters. The claims of the parties upon this trial, briefly stated, were: That appellants claimed this $3,400 belonged to the estate of Peter W. Reed, deceased, to be accounted for by the special administrator. Appellee claimed that this sum represented by the certificates of deposit and the bank book was the property of Hannah Waters, being a gift causa mortis to her by said Peter W. Reed.

1. Errors are assigned on account of the refusal of the court to allow the amendments to the findings of fact, proposed by the appellants. The record shows that six such amendments were proposed. The first, fifth, and sixth relate to the fact that the will of Peter W. Reed, deceased, had been held void in the circuit court on account of undue influence of Hannah Waters, and the judgment of said court had been affirmed by this court, and ask that the court find the effect of the decision to adjudge that the certificates and bank book were the property of the estate of Peter W. Reed; in other words, that the decision in that case made the question raised here as to this property res adjudicata. The circumstances upon which the claim of ownership in Hannah Waters to this property is based occurred on the 8th day of May, 1898. The will was made May 2, 1898. The determination as to the validity of the will did not adjudicate the question as to the gift causa mortis of this property. The court evidently allowed the testimony admitted as to this will as bearing upon the main question of fact in dispute in the present case. The court did not err in refusing these proposed findings.

The second proposed amendment amends the eleventh finding of fact by adding, “and said claim and notice of appeal are hereto attached, marked ‘ Exhibit A,’ and made a part of this finding. It will be observed that this eleventh finding of fact of the court relates to the fact that Hannah Waters, as devisee under the will of Peter W. Reed, filed a claim and notice of appeal from the order, which is now before this court, allowing the final account of the special administrator, Frank Whipple; said claim and notice alleges that the account omits the certificates of deposit and bank account in dispute in this case. We do not think that to set forth that appeal verbatim would state the fact more clearly. The court further found that her appeal had not been perfected. What she did on this claim and notice of appeal could be considered as bearing upon the present contention, but it was not error to refuse to set up all the details of that appeal.

The third amendment proposed a finding that the certificates and the money represented by the bank book were the property of the estate of Peter W. Reed. This asked for a finding by the court in favor of appellants. If the court accepted the contention of the appellants, and was satisfied that it was sustained by a preponderance of evidence, he would without doubt have found as requested, but, as his findings show a contrary conclusion, he was not in error, provided such finding is found to be supported by evidence.

The fourth amendment proposed a finding that the action of Frank Whipple in receipting for the funds in dispute as special administrator obligated him to account for such funds to the estate. This contention is undoubtedly true, if such action is undisputable evidence and conclusive as to that matter. We do not think it is. There is testimony in the case tending to show the circumstances under which he received the funds, and why he signed as such special.administrator. It is conceded that such signing is weighty evidence that he was dealing with the property as belonging to the estate, but it is not conclusive. No error was committed in refusing to allow the amendment.

2. There are eleven assignments of error upon rulings of the court during the progress of the trial. The record does not seem to support the first of these assignments of error. It relates to the testimony of Harrington, bank cashier, a witness for appellants, and claims that the court overruled the objection to his testimony, on cross-examination, in substance that he would not have paid the certificates if Whipple had not indorsed them as special administrator. The record shows that this occurred on redirect examination, that the other side objected, and the court overruled the objection, and the witness answered the question. Appellants had no cause for complaint.

It is claimed that the court erred in ruling that the administrator, Benjamin R. Whipple, need not produce the special administrator’s books. The record does not show that the court made such a ruling. This witness said he would produce the books if necessary, and the court suggested that the law provided how to get them into court, saying he doubted his authority to order them in at the present state of the case. No subpoena duces tecum or order to produce was asked for. Counsel should have followed the usual practice if these books were considered material. The court did not refuse its assistance.

It is also claimed that the court erred in permitting the witness Hannah Waters to testify as to matters equally within the knowledge of Peter W. Reed or Prank Whip-' pie. As far as this proceeding is concerned, this witness could in no way be considered as an opposite party to the interest of Prank Whipple. The suit or proceeding was an adjudication upon the final account of said Whipple as special administrator of the estate of Peter W. Reed, deceased, and the question is not raised in behalf of Whipple. If it were, and if the statute invoked applied, the representative of Whipple waived the question by introducing this testimony.

The question is raised by the appellants, who are two of the heirs of Peter W. Reed. The claim is made that Hannah Waters is in fact the opposite party, and that this is a proceeding defended by the heirs of á deceased person. The familiar words of this statute are:

“That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.” 3 Comp.. Laws, § 10212.

It cannot be disputed but that the facts testified to by this witness, relative to what occurred at the time the claimed gift causa mortis was made to her by Peter W. Reed, were, if true, equally within his knowledge. The question is squarely raised upon the record, but counsel on both sides in their briefs present the question without argument or citation of authorities. The statute has been many times passed upon by this court, and, to determine the question here raised, has necessitated the examination of the numerous cases.

In Downey v. Andrus, 43 Mich. 65; Latourette v. McKeon, 104 Mich. 156, and several other cases, all these decisions are summarized and reviewed. In none of these cases do we find circumstances exactly similar to the case at bar. This court has laid down the proposition that the inhibition of the statute is to be applied to the real party in interest, in determining who is to come within the meaning of the term “ opposite party.” We think that the further proposition may be stated that such person, in order to be considered within the term “opposite party,” must be concluded by the determination of the proceeding or suit under consideration. It cannot be disputed but that the witness Hannah Waters was in a sense an interested witness. Is she on that account the real party in interest? Would she be concluded by the determination in this proceeding? Can it be said that, no matter what might be the result here, she could not take any proper proceedings to enforce her claimed rights to the property in dispute, should such proceedings be deemed necessary? Would this become res ad judicata as to her? We must answer these questions in the negative. She is not a party, real or nominal, to this proceeding. She has been called as a witness on behalf of the representative of the special administrator, and it is sought to establish by her that the property which appellants claim belongs to the estate of Peter W. Reed, deceased, is her property, and therefore not to be accounted for by the special administrator. This proceeding gives her no day in court, and cannot be res adjudicata as to her rights and interests. It was not error to accept her testimony.

Error is assigned as to the refusal of the court to strike out the testimony of this witness relative to the fact that she had not paid Frank Whipple anything for his services, and in striking out her statement that “ Judge Whipple did just as he thought best about the matter. He had it in his hands. ” Both these statements had no bearing upoh the real questions in controversy. This case was tried without a jury. We think there would have been no error in striking out both statements, and leaving the first in the case was not prejudicial.

Judge Whipple’s testimony on the contest of the will was sought to be shown on cross-examination of this witness in this proceeding, claiming that he having been called in behalf of proponents of said will, and having testified as to certain matters, she was estopped by his testimony. A copy of his testimony was not produced or offered in evidence. No proper foundation was laid for its introduction. • We think the court exercised all the latitude proper, relative to such cross-examination, and very properly kept, as far as possible, the issue in this case separate and distinct from the other cases which have been litigated in this estate.

The only remaining exceptions, not already considered, relate to the finding and determination of the court relative to the appeal from the probate court, and dismissing the same because the issues presented were not raised in the probate court. We think these exceptions are well taken. If the court was right in his holding, no appeal can be taken in any case from probate court to the circuit court where the party appealing does not appear and tender an issue in probate court upon all questions he may desire to-raise upon an appeal, and that no appeal can be tried in the circuit court upon questions not raised and passed upon in probate court. In cases of accountings by administrators and executors this is not the law.

In Showers v. Morrill, 41 Mich. 700, an administrator appealed from part of an order disallowing certain items of his final account. Referring to and quoting the statute, the court said:

“ This clearly does not authorize or permit an appeal to be taken from the disallowance of certain items in an account. The appeal must be taken from the order which brings up the entire matter and permits a rehearing upon each and every item of the account.”

Jackson v. Leech’s Estate, 113 Mich. 391, was an appeal from an order made on the final account of an executor, where he was charged with a large sum in addition to the account presented by him. In the circuit court he was allowed to amend the account by adding certain items to his credits. The court held:

“ It is said that this amendment is unlawful, it being contended that the circuit court could not pass upon items not considered by the probate court, and counsel cites Patrick v. Howard, 47 Mich. 40, and other cases in support of this contention. These were cases of claims of creditors, and are distinguishable from this case, which falls under the well-settled rule that, in cases of accounting by administrators and executors, it is proper for the circuit court to allow amendments and additions to the account presented for settlement, in furtherance of justice. Brown v. Forsche, 43 Mich. 501; Loomis v. Armstrong, 49 Mich. 527, 63 Mich. 366. We are of the opinion that the amendment was properly allowed.”

The presence of an attorney in the case at bar for the appellants in probate court at the time of hearing, where no appearance was entered, and no rights waived, was immaterial, as was also the finding of fact relative to that matter. This appeal brought the whole account before the circuit court. The appeal was properly made. The conclusion of the circuit court that the appeal should be dismissed was erroneous. The case was properly before the circuit court for trial. The facts found and the conelusions of law were supported by the evidence in the case, and upon said findings of fact and conclusions of law, except as above set forth, the said judgment affirming the order of the probate court is affirmed, with costs.

The case will be remanded to the circuit court, where a proper order will be prepared certifying this determination to the probate court. .

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


source: Caselaw Access Project

license: Public Domain

text:
    EMIGH v. WHITELEY.
    Reformation of Instruments — Evidence—Sufficiency.
    On a bill to reform a lease, evidence examined, and held, that the stipulation therein concerning the use of the adjoining property was entered into in full knowledge of all parties and without fraud on complainant’s part.
    Appeal from Ingham; Wiest, J.
    Submitted January 20, 1905.
    (Docket No. 92.)
    Decided May 12, 1905.
    Bill by Glenn T. Emigh against Elizabeth Whiteley and Nellie M. Zimmerman to correct certain descriptions in a lease, and for an accounting. From a decree for ■complainant, defendants appeal.
    Affirmed.

      Q. A. Smith and O. J. Hood, for complainant.

      Jason E. Nichols, for defendants.
   McAlvay, J.

Complainant filed his bill of complaint in this cause, asking to correct certain mistakes made in the descriptions of certain property mentioned and described in a certain written lease made and entered into between the parties, September 16, 1901, and for an accounting with the defendants on account of damages he has suffered by reason of nonperformance by said defendants of the terms and conditions of said contract of leasing, and their failure to keep the covenants therein contained. Defendants were the owners of the store building and the land upon which it was situated in the city of Lansing, known as No. 221 Washington avenue south, and also owners of the undivided one-half of the store building next adjoining said property on the south, and known as No. 223 Washington avenue south. One Philo Daniels, since deceased, was the owner of the other one-half interest of said last-described premises. The claimed mistake sought to be corrected is that property No. 221, above mentioned, is described in the lease as No. 217, and property No. 223 is described as No. 219.

At the time of making the lease in dispute complainant was occupying the premises first above described, under a lease for one year, for a billiard parlor. Under this lease complainant’s term would expire July 1, 1902. Philo Daniels had charge of the matter of renting the store building and premises No. 223. These premises had been occupied as a furniture store by Longyear Bros, under a lease that would expire in June, 1902. They vacated in August, 1901, and by agreement with Daniels one Marsh was given possession of the unexpired term. Marsh then put in a billiard parlor. Complainant claims that this competition was of great damage to his business, and that he complained to defendants and threatened to move out; that negotiations were had between these parties, and finally it was agreed between them that, in consideration defendants would give him a lease for a term of three years from and after July 1, 1902, the date of the expiration of his old lease, and would not lease No. 223 for a billiard hall, he would pay $10 per month more rent, making $50 a month, make all necessary repairs upon the building, papering and painting included, upstairs as well as downstairs, and pay the expense of painting the outside of the building ; also that he would erect a brick or iron building in the rear at his own expense, said building to belong to defendants at the expiration of the lease; and that towards the expense of a new steel ceiling to be put in the store he would pay the balance over $100. Complainant claims that this is the lease that was in fact executed, and that under it, at an expense of $300, he built the addition as agreed, and has done and performed in all things as required by its terms. He further claims that defendants continually, since the 1st of July, 1902, have rented or permitted to be rented premises No. 223 to be occupied and used as a billiard hall, and received their rent therefor, notwithstanding their written agreement not to do so, and that he has been greatly damaged thereby. The defendants admit the execution of the lease, and that there is a mistake in the description of the two properties mentioned, and do not object to a correction in that regard, but they claim that the clause in said lease, “ Parties of the first part agree not to rent building No. 219 as a billiard hall,” was procured by complainant through fraud, by misrepresentation of what Daniels had told him. They admit that Daniels has rented No. 223 for a billiard hall, and they have ever since received their share of the rent, but claim they have personally had nothing to do with the renting.

It being admitted that the mistake in the descriptions should be corrected, it only remains for this court to determine the question of fact as to the clause above quoted. As there is no question of law involved, an extended discussion of the testimony can be of no interest to the profession. We find from the proofs in the case that the lease was entered into by all the parties with full knowledge of all its terms and conditions, and that no fraud or misrepresentation was in any way practiced upon defendants, or either of them, to induce them to make such a contract, or any part of it; that the clause in question was inserted by and with the full consent and knowledge of all parties. We also find, as is admitted in the record, that there was a mutual mistake in the descriptions of the properties in said lease. The matter of the accounting is not urged before us.

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

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


author: Moore, C. J.

text:
    CANNON v. McINTYRE.
    1. Appeal and Error — Sufficiency of Evidence.
    Where, in his certificate to the bill of exceptions, the circuit judge returns that not all the testimony is contained therein, this court cannot say that the judgment is not justified by the evidence.
    2. Same — Sufficiency of Findings to Support Judgment.
    The objection that there are not sufficient facts to support the. judgment cannot be raised where plaintiff in error did not request further findings.
    3. Bills and Notes — Conditional Delivery.
    Whether the parties to a negotiable paper may agree upon its conditional delivery to the payee, quaere.
    Error to Calhoun; Hopkins, J.
    Submitted February 3, 1905.
    (Docket No. 223.)
    Decided May 12, 1905.
    Assumpsit by Clinton D. Cannon against Abraham R. McIntyre on certain promissory notes. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      F. W. Loomis, for appellant.'

      Stewart & Sabin, for appellee.
   Moore, C. J.

This case is brought here by writ of error. Plaintiff sued upon a promissory note reading:

“$250.00. Feb. 14, 1902.
“ Nine months after date I promise to pay to the order of Clinton D. Cannon Two Hundred and Fifty & no-100
Dollars at-without interest. Value received.
“A. R. McIntyre.
“Due, 11 — 14—’02.”

And upon another one which was due in three months, and was for $300.

The case was tried before the circuit judge. Before he rendered judgment the plaintiff requested him, in writing,

“ that, in case the court finds for the defendant, that the defense or defenses upon which relief is granted be stated in his decision, and further that the facts in evidence in which such defense or defenses are found to exist be also stated.” The judge made the following findings:

“ This is an action of assumpsit on two promissory notes given by the defendant to the plaintiff in payment for stock in the Cannon Metal Wheel Works Company, Limited. The defense gave notice of recoupment, set-off, failure of consideration, fraud, and nondelivery of the notes upon which the action is brought; but upon the trial fraud, failure of consideration, and nondelivery, or delivery upon condition, were the only defenses relied upon, and relating to which evidence was offered. * * *
“After á careful consideration of the testimony, the court finds that the defense of fraud is not established. The evidence does not show any such false statements or misrepresentations as would amount to fraud, either legal or actual. The defendant had ample opportunity to examine into not only the validity of the patent, but the construction of the wheels, for the manufacture of which the above-named company was organized. He cannot now, after such opportunity to investigate and decide for himself was afforded him, be heard to complain that he was deceived by the plaintiff.
“ It also appears from the testimony that the stock has, or did have at one time, some value, and that the defendant has received something upon his stock upon a liquidation of the affairs of the company. The defense of failure of consideration is not established by the evidence.
“ There remains to be considered the defense of the delivery of the notes in escrow as stated in the pleadings, but which might with more propriety be described as a delivery upon condition. It is claimed by the defendant that these notes, together with another one executed at the same time, and all given in payment for stock in the above-named company, were delivered to the plaintiff upon the agreement that they should not be transferred by the plaintiff, and not to be paid until the success of the compamy was assured. This agreement as to the non-transfer of the notes, and that they were not to be paid until the success of the company was assured, is denied by the plaintiff. No rule of law has been cited by counsel which will permit the consideration of parol testimony to contradict the written terms of the instrument designating the time at which payment is to be made.
“ It appears from the testimony of both parties that at the time of the execution of the notes it was proposed by the defendant to execute a contract which, together with the notes and the stock for which the notes were given in payment, were to be placed in a bank, and when the notes were paid the plaintiff was to execute a transfer of the stock to the defendant. This proposition was not acceded to by the plaintiff. His testimony upon this point is as follows:
“ T told him I thought there was a better way to get at it, and I didn’t really like the contract, anyway, because it was lacking in some respects; and I says: “I will tell you what I will do: I will sign the transfer of this stock right over to you, and deliver it, and you can deliver the notes to me. That makes the stock all paid for, and then all you will have to do is to settle for the notes afterward.” And that was the whole of the agreement.’
“From this testimony of the parties, it appears there was some agreement between the parties relating to the delivery of the notes — something, as he says, to be ‘ got at, ’ which is inconsistent with the unconditional delivery of the notes, upon which plaintiff must rely for a recovery in this case. While the conditions of the delivery do not clearly appear, and the testimony of the parties in regard thereto is conflicting, and while this defense might not be available in the hands of an innocent purchaser of the notes -for value, it is apparent that there was some agreement between the parties in the nature of a condition attached to the delivery of these notes, and that this agreement was of such a nature as to be available as a defense between the original parties to the transaction, which agreement can be shown by parol evidence.
“A judgment of no cause of action may be entered upon this finding with costs to be taxed.”

It is now said the finding of the court was contrary to the evidence, that there were not sufficient facts to support the judgment, and that those found' support a judgment for the plaintiff instead of for the defendant. No request was made of the circuit judge that he make amended or further findings. See Circuit Court Rule 26, subd. 6., and cases cited in the note.

In his certificate to the bill of exceptions, the circuit judge returns that not all of the testimony is contained therein. Under these circumstances, we cannot say the judgment was not justified by the testimony. See Cragin v. Gardner, 64 Mich., at page 404, and the many cases there cited. Merrill v. Newton, 99 Mich., at page 229.

The ground upon which plaintiff urges that the facts found do not support the judgment for defendant, and do warrant a judgment for the plaintiff, is this: That the facts found “should have shown what the condition was, and, as they failed to do so, the judgment should fall.” Had plaintiff desired the findings to show precisely what the condition was, he should have made a request for further findings. Having failed to do that, he cannot now raise the objection under consideration.

To avoid any misapprehension, we deem it proper to say that we do not feel ourselves at liberty, on this record, to consider whether, under the doctrine of Phelps v. Abbott, 114 Mich. 88, parties to a negotiable paper may agree upon its conditional delivery to the payee. Appellant’s entire argument for the reversal of this case assumes the validity of such an agreement.

Judgment is affirmed.

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


text:
    KIBLER v. CAPLIS.
    1. Sales — Option—Acceptance—Letter—Presumptions.
    Evidence tending to prove the sending of a telegram and letter accepting an option to purchase, which in due course should have arrived before the expiration of the option, examined, and held, to present a question for the jury as to when the telegram and letter were received.
    2. Same — Acceptance by Letter — Time.
    The mere sending of a telegram and letter of acceptance before the expiration of an option is not a sufficient acceptance, unless one of them is actually received by the sendee before expiration of the option.
    3. Same — Payment—Time—Oral Agreement.
    Where a written option to purchase certain goods is unambiguous, and nothing is said therein about the time and manner of payment, payment and delivery are concurrent, and evidence that it was agreed by parol that a certain down payment should be made before delivery is inadmissible.
    4. Same.
    Where an option to purchase hides required that they should be banked overnight, trimmed of meats, manure removed, and shaken over barrels and swept, and, when this was done, that they should be weighed and delivered, the buyers were not required to pay the price in advance of performance of such acts by the seller
    5 Same — Market Price — Evidence—Trade Paper.
    In an action for breach of a contract for the sale of certain hides in Detroit, a trade paper containing the market value of hides in Chicago, where, a witness testified, more similar hides were taken off than in any other city in the United States, was admissible.
    Error to Wayne; Frazer, J.
    Submitted February 7, 1905.
    (Docket No. 98.)
    Decided May 12, 1905.
    Assumpsit by Samuel J. Kibler and John W. Kibler, copartners as S. J. Kibler & Brother, against Michael Caplis for breach of contract for the sale of certain hides. There was judgment for defendant, and plaintiffs bring error.
    Reversed.

      Adolph Slo'man (Edmund M. Sloman, of counsel), for appellants.

      James H. Pound, for appellee.
   Moore, C. J.

Plaintiffs sued to recover for breach of contract for the sale of a quantity of hides, for which defendant gave them an option reading:

“Detroit, Michigan, October 5, 1901.
“ I this day give Samuel J. Kibler & Brother an option on my hides, at ten cents per pound flat; hides to be banked overnight, trimmed of meats, and manure to be removed. Option to expire Tuesday noon, October 8,1901. Hides to be shaken over barrels and swept.
“Michael Oaplis.”
At the same time, and in consideration therefor, plaintiffs gave defendant an option for the same' hides on the same terms, at 9f cents, flat, per pound. Plaintiffs gave testimony tending to show that they sent from New Washington, Ohio, a telegram as follows:
“ October 7, 1901.
“Mr. Oaplis,
‘ ‘ Care Oaplis & Co.,
‘ ‘ Detroit, Michigan:
“ Will take your hides, as per your option on hand.
“Samuel J. Kibler & Brother.”

And on the same day a letter as follows:

Dear Sir: We wired you today, accepting your hides as per price and option you gave us October 5, and which we now confirm, prices and conditions as follows: Price ten cents, flat; hides to be banked overnight, trimmed of meats, manure to be removed, hides to be shaken over barrels and swept. Would advise later when we will commence to take up. This is an extreme price and you have made a very good sale.
“Yours truly,
“Samuel J. Kibler & Brother.”

It was the claim of the plaintiffs that the defendant refused to deliver him the hides, and this suit was brought to recover the damages. It was tried before a jury, which returned a verdict for defendant. The case is brought here by writ of error.

The assignments of error are discussed under the following heads:

First.. Had plaintiffs accepted the option in time ?

Second. Was the sending of the telegram and letter a sufficient acceptance, whether received by the defendant or not ?

Third. Could defendant, by his testimony, vary the contract by showing that at the time the option was given there was an oral understanding that one thousand dollars was to be paid down on its acceptance ?

Fourth. Under the terms of this option, were plaintiffs required to pay the purchase price to secure the same in advance of the doing of the things called for by the option, and more particularly the ascertainment of the number of pounds from which the total of the purchase price could only be determined ?

Fifth. Could plaintiffs show the value of these hides by proof of the Chicago market if the Chicago market in a measure controlled the Detroit market ?

We will take up the assignments of error in the order presented by counsel:

1. It was the claim of plaintiffs that the telegram sent on the 7th of October would, in the regular course of business, reach defendant on the 7th. Except the evidence that the telegram was sent, and the presumptions arising therefrom, there was no evidence that it was delivered to the defendant. He testified that he never received it. It was also the claim of plaintiffs that the letter was mailed between 6 o’clock and 7:15 o’clock on the afternoon of the 7th, and by due course of mail should have been received by the defendant by noon of the 8th. The defendant testified he did not receive it until later than noon of the 8th. In People v. Hammond, 132 Mich. 422, it was held that there is,a presumption that those in charge of receiving and transmitting mail perform the duties intrusted to them; that there is a presumption that when a telegram has been delivered to a telegraph company, and accepted by the operator for transmission, it is duly forwarded and received by the addressee. See, also, 1 Greenleaf on Evidence (16th Ed.), p. 137. In view of this presumption and the testimony, a question of fact was presented as to when the option was received.

2. Was the sending of the telegram and letter a sufficient acceptance, whether received by the defendant or not? Plaintiffs claim it was, but cite no authorities in support of the proposition. If the sending of a letter from New Washington, Ohio, before noon of the 8th would be sufficient, would the sending of one from the State of Washington by noon of the 8th be sufficient ? It is evident the parties had in mind that the offer to sell would be good only until noon of the 8th. Unless actually notified by that time of its acceptance, we do not think defendant could be held. See notes to Litz v. Goosling, 21 L. R. A. 129 (93 Ky. 185).

3. The defendant was permitted to show by parol that, at the time the option was given, it was agreed a down payment of $1,000 should be made. Plaintiffs denied such ah agreement was made. The option is not ambiguous. It is true, it is silent about the time and manner of payment. Where nothing is said about it, delivery and payment are concurrent acts. 2 Mechem on Sales, § 1119. If there was an agreement about the time and manner of payment, it should have been put in the option. The parties are presumed to have put their agreement in writing. The oral testimony was incompetent. McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269; Cohen v. Jackoboice, 101 Mich. 409; Grashaw v. Wilson, 123 Mich. 368; Mouat v. Montague, 122 Mich. 334; Hallett v Gordon, 122 Mich. 570, 571; Althouse v. McMillan, 132 Mich. 145.

4. By the terms of the option, the hides were to be banked overnight, trimmed of meats, and manure to be removed, and were to be shaken over barrels and swept. When this was done they would be ready for weighing and delivery, and, as before stated, delivery and payment would be concurrent acts. See, also, 3 Mechem on Sales, § 1115.

5. Was it error to exclude a trade paper containing the market value of hides in Chicago ? One of the witnesses testified:

“Chicago being the great butchering center, the class of hides such as the plaintiffs purchased from defendant are more taken off in Chicago than in any other city of the United States, perhaps in the world, and that is the market for that class of goods; that when they come here to purchase hides they are governed by the Chicago market.”

We think this feature of the case is ruled by Aulls v. Young, 98 Mich. 331, and the cases cited therein, and that the testimony should have been admitted.

The case is reversed, and new trial ordered.

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


text:
    TALCOTT v. FREEDMAN.
    1. Sales — Order—Acceptance—Contract—Breach.
    When an order for goods is accepted unconditionally, there is a contract, for the breach of which an action will lie irrespective of correspondence subsequently had concerning the buyer’s credit.
    3. Depositions — Use—Grounds.
    A deposition, the affidavit for taking which shows that the witness resides in New York city, may be used at the trial in Detroit without a showing that the cause' of taking still exists. Section 10142, 3 Comp. Laws.

      Error to Wayne; Donovan, J.
    Submitted February 7, 1905.
    (Docket No. 101.)
    Decided May 12, 1905.
    Assumpsit by James Talcott against Louis Freedman, Ephraim M. Love, David R. Love, Harry Love, and Henry Rosenthal, copartners as Freedman, Love & Company, for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Reversed.

      Adolph Sloman (Edmund M. Sloman, of counsel), for appellants.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Moore, C. J.

The plaintiff resides in the city of New York, and is a dealer, among other things, in cloths. The defendants reside in the city of Detroit, and are manufacturers of young men’s, boys’, and children’s pants. They had made some purchases of plaintiff prior to September 13, 1902, at which date they wrote him, asking him to send on some samples ranging in prices from 18 cents to 25 cents. The samples were sent by Snedeker and Orchard, having charge of that department, September 15, 1902. Attached to these samples were the prices asked for the goods. After examining the samples, the following letter was sent:

“Detroit, Mich., Sept. 22nd, 1902. “Mr. James Talcott,
“ New York.
Dear Sir: Enclosed we hand you an order for the following goods, sample pieces to be shipped at once and the balance Nov. delivery:
“Meteor, 20 pieces each of 1329-1294-1246-1291, at 25c.
“.Potomac, 25 pieces each of 3242-3217-3209-3224-3233, at 18c.
“ Ascots, 20 pieces each of 4301-4373-4317-4346-4348, at 21c.
“ Very truly yours,
“Freedman, Love & Co.”

In answer to this letter the following was received:

“ Memorandum op Order.
“From Mess. Freedman, Love & Co.,
“Detroit, Mich.
“To James Talcott.
“Philadelphia Goods, Woolens,
“Worsteds and Cottons.
“ New York, Sept. 27, 1902.
“ Isaac Snedeker.
“ Robt. R. Orchard.
“Terms below.
“This order is taken subject to strikes, failure of consignors and destruction by the elements.
“If this memorandum is not in accordance with your purchase, please return it at once for correction.”

Then follows a list of the goods and prices, the same as contained in the letter of defendants, except that the price put on ascots was 22¶ cents instead of 21 cents, and under the head of “ Remarks ” was:

“ 7/4 Jan. 1.
“Spc. at once. Del. Nov.
“P. S. Will not accept any cancellation on above order. If you wish to make any corrections on same it must be done on receipt of this copy of order. S. & 0.”

The witness states that the change from 21 cents to 22£ cents was assented to; that the memorandum, “7/4 Jan. 1,” opposite each of these pieces of goods, means, in the trade, a trade discount of 7 per cent, off, and this bill would be due May 1,1903; and that the memorandum, “ Spc. at once. Del. Nov.,” means that sample pieces were to be shipped at once, and the body of the order in November. On October 13th some goods were shipped, a still larger amount on October 31st, upwards of $240 worth the 5th of November, and upwards of $600 worth on the 4th of December, making a total of $1,172.88; and it is for this amount that this suit is brought. The case was tried before a jury, but the circuit judge directed a verdict in favor of plaintiff, and the case is brought here by writ of error.

It is the claim of defendants that the order for 305 pieces sent in on the 22d of September was accepted by the memorandum of September 27th, followed by the shipment of 133 pieces of the goods ordered, and that the plaintiff failed to ship the balance of the order because the prices of the goods in the meantime had increased, and sought to recover damages for the failure to ship the goods. It is the claim of the plaintiff that the minds of the parties never met, and that no contract was made, and that the failure to ship the goods was because the order was for a larger amount than defendants were entitled to get credit for, and claimed that the following letters indicate that fact:

“ [James Talcott’s Letter Head.]
“New York, Nov. 22,1902.
“Messrs. Freedman, Love & Co.,
“ Detroit, Mich.
Gentlemen: We have your order in the aggregate amounting to $2,000 in our Snedeker & Orchard Department, and we would like to know what arrangement you wish to make in respect thereto, as the amount is considerably in excess of any line of credit which you have had with us heretofore. When you have taken inventory kindly send us a copy on the enclosed blank. Shall we ship goods up to say $1,000, and after that will you discount so that we can make deliveries on the balance ?
“ Yours truly,
“James Talcott.”
“ [Freedman, Love & Co.’s Letter Head.]
“ Detroit, Mich., Nov. 26th, 1902.
“ Mr. James Talcott,
“New York.
“Dear Sir: Replying to yours of the 22nd inst., will say that we have not yet taken inventory, we generally take same between the holidays' and then we can submit you a statement. In the meantime you can ship us a part of everything that we have bought from you. The reason that we have given you a much larger order than before is that we have left some one else out and given you the entire order on the kind of goods we wanted, as your goods suited us the best.
“Very truly yours,
“ Freedman, Love & Co.”
“ [James Talcott’s Letter Head.]
“New York, Nov. 28, 1902.
“Messrs. Freedman, Love & Co.,
“ Detroit, Mich.
Gentlemen: Your favor is duly received. We would like to know the reason for the delay in the payment of your bills due November 1st, and if you can send us a statement, tell us approximately what is the result of the 1902 business as far as you can see, and what arrangement you wish to make in respect to your order, or at least that proportion of it that is in excess of a reasonable line of credit. Please reply at once so that we can get your answer by Monday, and oblige,
“ Yours truly,
“James Talcott.”
“[Freedman, Love & Co.’s Letter Head.]
“Detroit, Mich., Dec. 2, 1902.
“Mr. James Talcott,
“ New York.
Dear Sir: Replying to your letter of Nov. 28th, we would say that the cause of the delay of the balance that was due you on Nov. 1st, was because all of our merchandise became due on that day and collections at that time were very slow on account of the warm weather and merchants writing in for extensions in time. In regard to our business of 1902 we have done a fair business that fully came up to our expectations. We are now preparing to do a somewhat larger business in 1903, as we have now added Men’s and Youths’ pants to our line, and in regard about the amount we bought from you this was explained to you in a previous letter, as your goods suited us and we bought all that class of goods from you. Trusting that this explanation will be satisfactory to you, we beg to remain,
“ Yours very truly,
“Freedman, Love & Co.” •

It will be observed the order for the goods was sent September 22, 1902. The reply thereto is dated September 27th. It states the terms to be “7/4 Jan. 1,” the meaning of which has already appeared. There is not a suggestion in it that plaintiff is not willing to fill the order, but, on the contrary, a postscript is added, stating that plaintiff “will not accept any cancellation on above order,” and stating further, in substance, that, if defendant desired to make any corrections, it must be doné at once. The correction already indicated was at once made. October 13th a commencement was made toward shipping the goods, and other shipments followed as already stated. It was not until two months after the order was accepted that any suggestion was made about the size of the order or the question of credit. We think what was done amounted to a contract, for a breach of which damages might be recovered. Webb v. Shirt Co., 101 Mich. 136; F. W. Kavanaugh Manfg. Co. v. Rosen, 132 Mich. 44; 1 Mechem on Sales, §§ 240-242.

Error is assigned upon the admission of depositions which had been taken of witnesses living in New York. 'The fact that they lived there was made to appear by the affidavit of the attorney, as the basis of taking the depositions. It is said it was not shown at the trial that the reasons still existed; citing Emlaw v. Emlaw, 20 Mich. 11, and an earlier case. Since those decisions the statute has been amended, and we think it was not error to admit the depositions. See 3 Comp. Laws, §10142; Patterson v. Railway Co., 54 Mich. 91.

Assignments of error in relation to the question of damages are argued. The judge ruled out all testimony of that character, because he was of the opinion no contract had been shown. It follows from what we have already said that he was in error in that respect. See F. W. Kavanaugh Manfg. Co. v. Rosen, supra.

Judgment reversed, and new trial ordered.

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


text:
    CROWLEY v. CROWLEY.
    Cancellation of Deed — Evidence—Sufficiency.
    On a bill to set aside a deed from complainant to her son on account of undue influence, evidence examined, and held, to support a decree for complainant.
    Appeal from Muskegon; Russell, J.
    Submitted February 8, 1905.
    (Docket No. 109.)
    Decided May 12, 1905.
    Bill by Julia Crowley against Jeremiah Crowley to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.

      James E. Sullivan, for complainant.

      Turner’ & Turner, for defendant.
   McAlvay, J.

Complainant is mother of the defendant, and filed her bill of complaint in the circuit court for Muskegon county to set aside a certain deed to him, dated May 19, 1903, on account of undue influence. Complainant is 80 years old, and unable to read or write. She owned certain real estate in Muskegon county, left her by the will of her husband, Michael Crowley, who died May 4, 1901. She has three children living, and a granddaughter. The record discloses that she has made three wills, and that she has twice attempted to distribute her real estate by deeds to the three children, having made six deeds. The first set of three deeds, made May 6, 1903, were destroyed on May 19, 1903, when she made three others. Among these last deeds was the one in question in this suit. The first deed to defendant, dated May 6th, was “to take no effect until after my demise and funeral expenses paid.” This deed was not recorded on account of imperfect execution. The deed in dispute reserved to complainant the use and occupation of the premises during her lifetime, and defendant was to pay the granddaughter, on her coming of age, $100. The land deeded was one-half of the homestead, which complainant had occupied for more than 30 years. The other half was deeded to the son Patrick. All the deeds to the sons were for a nominal consideration.

Defendant had been living in North Dakota. He came back in March, 1903. All these instruments ■ mentioned, except the first will, were made after his return. Another instrument was drawn May 6, 1903, in the nature of a bond from Patrick and Jeremiah Crowley to the granddaughter to pay her $200, and on the same paper a testamentary document by complainant, and an order, presumably to the bank, at her death, to pay $200 to her sons, $100 for cemetery lot, $100 for funeral expenses, and the balance to Father Whalen. Defendant claimed that, after the last deed to him, he made a verbal lease of the premises with his mother for her lifetime at $100 per year. Complainant left her home soon after this deed was made to defendant, claiming that she was ill-treated, and later filed her bill in this case.

The situation as indicated by the foregoing outline was thoroughly investigated upon hearing in open court. The issue was purely one of fact. There is no question of law in the case. An examination of the testimony satisfies us that the proofs sustained the complainant’s bill, and the circuit judge made the proper decree in the case.

The decree is affirmed, with costs.

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


author: Blair, J.

text:
    LANSKY v. PRETTYMAN.

    1. Malicious Prosecution — False' Imprisonment — Evidence.
    Allowing defendant, in an action for false imprisonment and malicious prosecution, to show by plaintiff, on cross-examination, that he knew a certain deputy sheriff, other than the one who made the arrest, and had been to his office a couple of times, was not prejudicial, as conveying the impression that plaintiff was a violator of the law, and as such frequently came in contact with officers.
    2. Same — Accomplice.
    Where plaintiff denies acquaintance with a person arrested with him for the same crime, evidence that after plaintiff’s discharge he sent articles of clothing to the supposed accomplice while in jail is admissible.
    3. Same — Probable Cause — Advice op Counsel — Evidence.
    Defendant should not be permitted to testify that he stated all the facts to the prosecuting attorney, but should state what he told the attorney, that the jury might determine whether all the facts were so stated.
    4. Same — Harmless Error.
    Error in allowing defendant to testify that he stated all the facts to the prosecuting attorney is harmless where the undisputed facts show probable cause irrespective of legal advice.
    5. Same — Assault and Battery — Instructions.
    A request to charge, predicated on an admission by defendant of the assault and imprisonment that is not sustained by the record, is properly refused.
    6. Same.
    An instruction in a case of assault and battery, false imprisonment, and malicious prosecution, examined, and held, to refer to the issue of malicious prosecution, and, as so understood, not objectionable as placing the burden on plaintiff to prove lack of justification for the imprisonment as well as absence of probable cause for making the criminal complaint.

      Error to Washtenaw; Kinne, J.
    Submitted February 7, 1905.
    (Docket No. 97.)
    Decided May 12, 1905.
    Case by William Lansky against Horace G. Prettyman for an assault and battery, false imprisonment, and malicious prosecution. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Frank A. Stivers (Bernard B. Selling, of counsel), for appellant.

      Thomas D. Kearney, for appellee.

       Rehearing denied October 2, 1905.

   Blair, J.

The plaintiff commenced suit against the defendant in the Washtenaw circuit court by filing a declaration alleging, as the basis of recovery, assault and battery, false imprisonment, and malicious prosecution. The defendant at the time of the occurrences which gave rise to the action was engaged in conducting a boarding house at Ann Arbor, and had in his employ a man by the name of Van Kaul. Shortly prior to the arrest of plaintiff, defendant missed certain provisions, which the cook told him had been stolen by Van Kaul, and that Van Kaul had endeavored to induce him (the cook) to assist him in stealing provisions and selling them to a junk dealer who kept a grocery store in Lower Town. On the evening of June 19th, 1903, defendant discovered that Van Kaul had stolen some sugar and eggs, and had driven away with them with defendant’s horse and wagon. Defendant summoned a deputy sheriff, with whom he had previously made arrangements, and they started in pursuit of Van Kaul. They met Van Kaul in Lower Town, near plaintiff’s place, on the way back, and arrested him, whereupon he told them that he had taken the eggs and sugar to plaintiff, and had sold them to him, as he had done on several previous occasions. Van Kaul went with defendant and the officer to plaintiff’s place, where he carried on the junk and grocery business, and pointed out plaintiff as the man to whom he had made the sales referred to, whereupon the officer arrested plaintiff without a warrant.

The parties are in irreconcilable conflict as to what occurred at plaintiff’s place of business. The plaintiff claimed that an unnecessary and brutal assault was made upon him by the defendant, under whose directions the officer acted, and that he was exposed to needless indignities and humiliation in the course of the arrest, and detained in jail beyond reason before he was afforded an opportunity to give bail or to have an examination. The defendant contended that the circumstances attending the arrest were proper, and such as were made necessary by plaintiff’s resistance, and that, in all that he did in making the arrest and conveying plaintiff to jail, he was acting under the directions and commands of the officer, and that in making the complaint he was acting under the directions and advice of the prosecuting attorney.

Plaintiff and Van Kaul were taken to the jail and locked up. During the night Van Kaul made a voluntary statement before a justice of the peace as follows:

“He took the brass into the brick building. I didn’t get out of the wagon at that same time. He said, if I had any butter, sugar, soap, or other groceries that I could bring down, to bring it right along. When I first saw him he said I better bring it at night, when it was dark. I told him the night I took the brass that I would bring him some butter and sugar. He said to bring it as soon as I could. It was a week or so — I don’t know how long, but quite a while- — -before I took the sugar. It was pulverized sugar. I took him a jar of butter. It was about 20 pounds of butter. The jar was gray, and weighed 9£ pounds, marked on the bottom. The sugar was about 25 pounds. I emptied it out of one sack into another. Lansky saw me stop in front, and he pointed me to go around. Then I went round the corner. Lansky came out to the wagon and took the stuff out, and into the back yard. He came out and gave me $1.50. I did not get out of the rig. He brought out the money. He asked me when I would come the next time. I asked him what he wanted. He said some eggs and granulated sugar. I told him I could not bring sugar next time, as we had but little on hand. The next thing I took was butter and eggs. It was a low, wide jar of butter, colored gray; and a little less than 3 dozen eggs. I went to the back, as before. Lansky gave me $2 for the stuff. There was a piece of paper and a string around it. I asked him if this was all he wanted, and he said: ‘ No, if you have any more, bring it down. I’ll take all you can get.’ The next things I took was tonight, June 19th. I took to Lansky about 40 pounds of granulated sugar in a sugar bag, and also 4 dozen eggs in a little pail. Prettyman’s pail. Tin pail. He came out and took them out of the wagon. I said that was the last I could bring. Pretty-man had shut down. He took the stuff in the back way. Tonight he paid me three halves and one quarter.
“Fred Van Kaul.
“Subscribed and sworn to before me on this 19th day of June, 1903.
“Andrew E. Gibson,
“ Justice of Peace.”

On the next day, June 20, 1903, a formal complaint against plaintiff and Van Kaul for larceny in a dwelling house in the day time was made by defendant under the direction of the prosecuting attorney, a warrant issued, the parties arraigned, and plaintiff released on bail. Van Kaul was tried and convicted, and sentenced to State prison for five years. Van Kaul having refused to testify against him, plaintiff was discharged at his examination, by order of the prosecuting attorney, and commenced this suit. The case was tried by a jury, and resulted in a verdict and judgment for defendant, to reverse which plaintiff prosecutes this writ of error.

Plaintiff’s counsel relies in his brief, for reversible errors, upon the rulings of the court in admitting certain testimony, in giving certain instructions, and refusing to give certain requests to charge.

It is contended that the court erred in permitting the defendant to show by the cross-examination of plaintiff that he knew Deputy Sheriff Gillen, who was not the officer who made the arrest, since the purpose must have been ‘ to give the jury the impression that the plaintiff was a man who came frequently in contact with the officers of the law, as a violator of the law.” There was nothing in the answers of plaintiff, that he knew Mr. Gillen, and had been to his office a couple of times, to justify any unfavorable impression, and we do not see how the answers could have prejudiced plaintiff in any way.

Plaintiff also complains that the court erred in permitting defendant to show that after plaintiff’s discharge he sent underclothing to Van Kaul at the jail. The relations between plaintiff and Van Kaul were of great importance to a correct determination of the issue before the jury. Plaintiff had testified that at the time of his arrest Van Kaul was a total stranger to him, with whom he had had no dealings whatever, and any testimony which legitimately bore upon this question was proper. We cannot say that the fact of his making presents to Van Kaul had no relevancy to this question. Its probative force may have been slight, but we think it was material and relevant in some degree, and was properly received.

The only other assignment of error upon this branch of the case questions the ruling of the court in permitting the defendant to testify that he had stated to the prosecuting attorney all of the facts about the case that he knew, without actually making any statement of such facts. The record, as to this question, is as follows:

‘ ‘ Q. Did you state to the prosecuting attorney all the facts that you knew in reference to this case ?
Mr. Selling: I think that what he stated to the prosecuting attorney might be proper, but whether he stated all is not proper.
A. I stated practically what I knew.
“ Mr. Selling: That is another conclusion. I make the same objection to it.
The Court: It seems to me that he would have the right to state whether he told the prosecuting attorney all the facts. I think it would be a fact whether he retained all the facts in his own mind, or whether he retained some things. (Exception for plaintiff.)
Q. Did you state all the facts that you knew in relation to this case both for and against Mr. Lansky and Yan Kaul ?
A. I gave him the facts that I knew.
Q. Did you give him all the facts you knew ?
“A. I certainly did. I told him everything I knew about the case from the beginning.”

We think the plaintiff’s objection should have been sustained.

“ It is a well-established rule of law that the advice and concurrence of a public prosecutor is not a good defense to an action for malicious prosecution unless it appears that the defendant fully and fairly disclosed to such officer everything within defendant’s knowledge which would tend to cause or to exclude belief in plaintiff’s guilt, and whether the defendant did make a full and fair disclosure to the district attorney was a matter for the jury to determine, and not for the trial court or this court.” Webster v. Fowler, 89 Mich 303. Govaski v. Downey, 100 Mich. 429; Thompson v. Price, 100 Mich. 558.
“The defendant should show what facts were stated to counsel, in order that it may be determined whether a full and fair disclosure was made.” 19 Am. & Eng. Enc. Law (2d Ed.), p. 687, and cases cited in note 5.

This precise question arose in Whitfield v. Westbrook, 40 Miss. 311, from which we quote as follows:

“ The first assignment is in reference to the testimony of the witness Howell. He was asked by counsel for plaintiff in error whether he stated all the facts in his knowledge, at the time he consulted counsel in reference to the prosecution out of which this suit originated, and asked his advice in relation thereto. This question was objected to by counsel for defendant in error on the ground that it was not competent for the witness to say that he told his counsel ‘all the facts,’ but that he should state ‘what he did tell’ him. This objection was sustained, and we think correctly. The object of the testimony on the part of plaintiff in error was to show probable cause, and to rebut the idea of malice, by showing that he had consulted counsel learned in the law before instituting the prosecution ; and the force of this testimony could only be ascertained by the truthfulness as well as the full disclosure of the facts upon which counsel is supposed to have founded his judgment. To allow the witness to state simply that he ‘ stated all the facts in.his knowledge,’ instead of stating what facts he communicated to his counsel, would have enabled the witness, who was a party defendant to the action, to evade the real questions upon which this matter of defense rested.”

We do not think, however, that the judgment should be reversed for this error, since, in our opinion, the undisputed facts of the case clearly establish probable cause for the making of the criminal complaint by defendant, regardless of the advice of the prosecuting attorney.

Upon the question of the burden of proof the plaintiff presented the following request to charge:

“ When the plaintiff in this case proved the assault and battery upon him, and his imprisonment, both the assault and battery and imprisonment being admitted by the said defendant, he has shown all that the law requires him to show, and he is entitled to damages at your hands for said assault and battery and imprisonment; and it is presumed that said assault and battery was unlawful, and said imprisonment illegal, unless the defendant convinces you by a fair preponderance of evidence that he had reasonable and probable cause to believe that the said plaintiff, William Lansky, had been guilty of a felony, and also that no more force was used than was necessary to arrest and imprison the said plaintiff, and upon both these propositions the burden of proof is upon the defendant. ”

This request was properly refused by the court, since it was predicated upon an admission by the defendant of assault and battery and imprisonment, not justified by the record.

Error is assigned upon the following charge of the court :

“What is probable cause is not contingent upon the fact of the guilt of the accused. The discharge of the respondent upon his examination is not of itself conclusive evidence of want of probable cause. So in this case the plaintiff must do more than prove that Mr. Lansky is not guilty of this offense, and that he was discharged upon the examination; and, if the plaintiff cannot satisfy you by a fair preponderance of the evidence that Mr. Pretty-man acted without probable cause and with malice, then your verdict must be for the defendant upon that charge. That is all I need say to you. In order for the plaintiff to recover in this case, it is sufficient for him to satisfy you by a fair preponderance of evidence of the material facts in the case. In other words, the burden of the proof is upon the plaintiff, in order to recover, to satisfy you by a fair preponderance of evidence that the material facts upon which he relies in this case have been sustained by the evidence and are true.”

Plaintiff’s counsel contend that by this instruction the court gave the jury to understand that the burden of proof rested upon plaintiff as to the lack of justification for the imprisonment, as well as to the absence of probable cause for making the criminal complaint. We do not so interpret the charge. The court, having finished with his instructions as to the counts charging assault and battery and false imprisonment, was here dealing with the count for malicious prosecution, and we think the jury must reasonably have so understood. As applied to the count for malicious prosecution, the instruction was correct.

There are no other assignments of error requiring discussion, and the judgment is affirmed.

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