text:
    SIMMS v. BIALY HARDWARE & SUPPLY CO.
    1. Corporations — Dissolution—Methods of Winding Up — Sales. '
    The dissolution of a mercantile corporation is not effected by failure to elect officers or by sale or assignment of all the corporate property or by the transfer to one stockholder of all the corporate stock, or by cessation of all corporate business and acts; nor by the death of its stockholders, of by insolvency.
    2. Corporations — Dissolution—Statutes—Ineffectual Attempt to Dissolve.
    A private corporation organized under Act No. 232, Pub. Acts 1903 (4 How. Stat. [2d Ed.] § 9532 et seq.), is not authorized to effect a dissolution of its corporate existence by filing a notice of the sale of its assets to one of the stockholders and of the intention to cease doing business; no express provision of law is included within such statutory provisions whereby a corporation so organized could become dissolved and wind up its affairs voluntarily, except by statutory proceedings in court.
    3. Same.
    Where a private corporation organized for the business of dealing at wholesale in hardware and supplies made an ineffectual and invalid attempt to dissolve, by disposing of all its assets to one of the stockholders, ceasing business, and filing notice of dissolution, one of the creditors of such company was entitled to issue process against it after the attempted winding up by serving a summons in justice’s court upon the last duly elected president; and the court had jurisdiction to render a valid judgment against it.
    4. Same — Successors—Fraudulent Conveyances.
    But the fact that the corporation was not properly dissolved did not render a conveyance of its property and assets to one of several stockholders fraudulent to a creditor having an unliquidated demand under a guaranty which the creditor claimed was breached subsequent to the time of transfer and attempted dissolution.
    5. Same — Equity—Creditor’s Suits — Fraudulent Conveyances.
    Where a complainant filed a judgment creditor’s bill asking that a conveyance of all its property from defendant corporation to its principal stockholder be set aside as fraudulent to creditors and it appeared from the evidence that no purpose existed to hinder, delay or prevent collection of their claims by creditors, that complainant’s judgment was for defective work and materials furnished to him under a guaranty more than six years before the commencement of suit,'the court of equity would not interfere in complainant’s favor to avoid the transfer as fraudulent.
    Appeal from Bay; Collins, J.
    Submitted April 19, 1915.
    (Docket No. 6.)
    Decided July 23, 1915.
    Bill by Henry W. Simms against the Bialy Hardware & Supply Company and others to set aside a transfer of the assets of said corporation. From a decree for complainant, defendant Robert C. Bialy appeals.
    Reversed.

      Qoumans & Gaffney, for appellant.

      Stoddart & McMillan, for appellee.
   Ostrander, J.

The Bialy Hardware & Supply Company was organized in December, 1904, under Act No. 232, Pub. Acts 1903 (4 How. Stat. [2d Ed.] § 9532 et seq.). The limit of its life as expressed in its articles of incorporation was 30 years. Its capital stock was $20,000 in 200 shares, of which Robert C. Bialy held 170, A. D. Bialy and W. H. McKerrigan each held 15 shares, its object to carry on the “business of wholesale and retail dealers in hardware and supplies” at Bay City. The last report of this corporation was filed April 16, 1909, and was dated March 12, 1909, at which time the holders of stock appeared to be the same as upon its organization. Of the three persons named R. C. Bialy was president, W. H. McKerrigan was vice president, and A. D. Bialy was secretary. In August, 1911, a notice was filed with the secretary of State and in the office of the register of deeds for Bay county, which reads as follows:

“Michigan Notice of Dissolution.
“The Bialy Hardware & Supply Company, Bay City,
“Michigan.
“June 1st, 1911.
“We, the undersigned, being a majority of the last board of directors of the Bialy Hardware & Supply Company, a corporation, doing business under the provisions of Act No. 232, Public Acts of 1903, hereby give notice in accordance with the requirements of section 12 of said act, that said corporation has been dissolved by mutual consent by sale of its property and franchises to Robert C. Bialy.
“Robert C. Bialy,
“William H. McKerrigan,
“Majority of directors.”

The business was continued by the defendant Robert C. Bialy under the name Bialy Hardware & Supply Company, and a certificate was filed with the county clerk of Bay county in accordance with Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), to the effect that Robert C. Bialy was the proprietor. In September, 1913, a corporation named Bialy Hardware Company was organized under the act already referred to, with a capital of $75,000, the incorporators being Robert C. Bialy, who owns 748 shares, and Mc-Kerrigan and one M. S. Babcock, who each owned 1 share of the stock. There was no interval in the conduct of the business, whether by the original corporation, by Bialy, or the corporation last named. Mr. Bialy paid nothing when he succeeded to the assets of the first corporation.

The complainant did some business with the corporation first above named, and, growing out of it, he claimed damages for the breach of a guaranty of the corporation. In 1911 he called the attention of officers of the corporation to the claim for damages which he was making. In June, 1913, he sued the Bialy Hardware & Supply Company in justice’s court. By the record kept by the. justice it appears that the return day of the summons was June 18, 1913; that it was served upon the defendant by delivering a copy thereof to Robert C. Bialy, its president, in the city of Bay City, in said county. On the 17th day of June, Robert C. Bialy informed the justice that he would not be in the city on the return day of the summons, and asked that the cause might be adjourned. On the return day of the summons, there was an appearance for the plaintiff by an attorney, who proved his authority to appear, and at the request of defendant the cause was adjourned to July 2, 1913, at 9 o’clock a. m. There was an appearance for plaintiff, but none for the defendant, on the adjourned day, and upon motion of the plaintiff and cause shown another adjournment was taken until August 1, 1913, at the same hour. On the last adjourned day, the plaintiff appeared in person and by attorney, and declared against the defendant in assumpsit, filing a written declaration. Robert C. Bialy appeared by an attorney and filed a written motion to dismiss the cause, setting up:

“First, that at time of commencement of suit there was not in existence, nor has there since been in existence, a corporation known as Bialy Hardware & Supply Company; second, that process was served on Robert C. Bialy, and that he had no connection whatsoever at, or subsequent to, the commencement of this suit, with a corporation known as Bialy Hardware & Supply Company; third, that Bialy Hardware & Supply Company, a corporation, voluntarily ceased doing business in accordance with the statutes of the State of Michigan prior to the commencement of this suit. Affidavit of Robert C. Bialy also filed in support of motion.”

There was another continuance to September 5,1913, to permit counsel to file briefs, at which time there were the same appearances as before, and no other appearance on the part of defendant, and, after waiting an hour, the justice proceeded to hear the cause. He overruled the motion to dismiss. There was then no further or other appearance for defendant, testimony was taken, and a judgment was entered for the plaintiff for $97 and costs. In time a transcript was taken to the circuit court for Bay county, and a writ of execution was issued, which was returned wholly unsatisfied. The judgment creditor,- the complainant, thereupon filed the bill in this cause. The bill was answered by defendants Robert C. Bialy and Bialy Hardware Company, but not by the judgment debtor, which was defaulted. At the hearing the defendant Robert C. Bialy presented three principal contentions, which áre:

“First. That complainant has no valid judgment against Bialy Hardware & Supply Company, a corporation, for the following reasons: (a) Bialy Hardware & Supply Company was not in existence at the time of the commencement of the suit in justice’s court; (b) Robert C. Bialy was not an officer of the Bialy Hardware & Supply Company at the time of the commencement of said suit, and for this reason there was no service of process, and therefore no jurisdiction in the justice’s court to find the alleged judgment; (c) Bialy Hardware & Supply Company was not an existing corporation, for the reason that its existence had terminated prior to the commencement of said suit.
“Second. That complainant has an adequate remedy at law, provided him by section 21 of Act 232, Public Acts of 1903, the act under which Bialy Hardware & Supply Company was incorporated.
“Third. That the bill of complaint should be dismissed for the reason that at the time of the transfer of the assets of Bialy Hardware & Supply Company to Robert C. Bialy there was no valid debt in existence, and therefore such transfer did not constitute a fraud upon complainant, either in fact or in law, so as to confer jurisdiction upon a court of equity.”

The circuit judge was of opinion that the corporation' debtor had never been dissolved; that the action of Robert C. Bialy in requesting before the return day of the summons that the cause might be adjourned on the return day was in law a general appearance in that proceeding; that the judgment rendered was valid; that 3 Comp. Laws, § 9760 (5 How. Stat. [2d Ed.] § 13533'), authorizes this suit, and a decree was entered for complainant in accordance with the prayer of the bill. The decree is that the defendant Bialy Hardware & Supply Company pay complainant his judgment; that Robert C. Bialy and the Bialy Hardware Company are trustees for the Bialy Hardware & Supply Company, and required to pay to complainant out of money, property, etc., which were received from and formerly held in the possession of the Bialy Hardware & Supply Company; that of such property there was sufficient in the hands of the last-named to pay the judgment; and that complainant was entitled to an execution to enforce the collection. From this decree Robert C. Bialy has appealed.

The act under which the corporation was organized as amended by Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543), contains, in section 12, a provision for making reports to the secretary of State of certain corporate actions, including the following:

“And in case a corporation organized or doing business under the provisions of this act shall be dissolved by process of law, or whose term of existence shall terminate by limitation, or whose property and franchises shall be sold at mortgage sale, or at private sale, or if for any reason the attitude of the corporation toward the State shall be changed from that set forth in the articles of association, it shall be the duty of the last board of directors of such corporation within thirty days thereafter to give written notice of such change to the secretary of State, signed by a majority of such directors and accompanied by a recording fee of fifty cents, which said notice shall be recorded as amendments are required to be recorded.”

Section 21 of Act No. 232, Pub. Acts 1903, is:

“If the capital stock of any such corporation shall be withdrawn, and refunded to the stockholders before the payment of all the debts of the corporation for which such stock would have been liable, the stockholders of such corporation shall be jointly and severally liable to any creditor of such corporation, in an action founded on this statute, to the amount of the sum refunded to him or them respectively.”

It is the contention of appellant that this act is a consolidation of previous laws, with some new provisions, and that it must be looked to, to find the powers of corporations existing by virtue of its provisions; that in the sections-which have been referred to is found the implied, if not express, power of voluntary dissolution, with a remedy for creditors who would otherwise be injured by such voluntary action. It is said that Robert C. Bialy merely withdrew his share of the capital stock of the corporation, and that the remedy of creditors of the corporation in such circumstances is clear. The question is not whether complainant, under the circumstances disclosed, had a remedy under this act, but is whether he is entitled to the remedy he has chosen.

As between the State and a private domestic corporation, there can be no voluntary dissolution of the corporation except as the State permits it.

“A dissolution is not effected by a failure to elect officers; nor by a sale or assignment of all the corporate property; nor by the fact that one person owns all the shares of stock; nor by a cessation of all corporate business and acts; nor by the death of its stockholders ; nor by insolvency.” 2 Cook on Corporations, § 631.

The legislature has by a general law (2 Comp. Laws, chap. 300) provided for the voluntary dissolution of corporations. It is not claimed that the Bialy Hardware & Supply Company was dissolved under the provisions of the law.

I do not find in Act No. 137 any permission to sell or assign all of the corporate property and franchises. A general reference is made in section 34 of Act No. 232 to chapter 280, 3 Comp. Laws, for applicable provisions of law. Turning to the chapter referred to, we find provisions for selling property and franchises of private corporations upon executions, and for the sale of all of the corporate property and franchises to another corporation formed for the same corporate purposes. Sections 8572, 8573 (4 How. Stat. [2d Ed.] §§ 9605, 9606). In section 8552 (4 How. Stat. [2d Ed.] § 9595), it is provided that whenever all corporate property and franchises have been sold upon mortgage foreclosure, the purchasers and their associates—

“shall be entitled to have and exercise all the privileges and franchises held by such corporation, and shall be deemed and taken to be the true owners of its corporate rights, and to be corporators vested with all the rights, * * * conferred by law or the statutes of this State upon such corporations, in the same manner, and to the same extent, as if they were the original corporators at the formation of such corporation; and they shall, within thirty days after such sale shall become absolute, file articles of association.”

There is no express provision of law to which I hav.e been referred, or which I have discovered, for the sale by a corporation of its property and franchises to an individual for the purpose of ending the corporate life, none permitting a corporation to voluntarily wind up its affairs except by a proceeding in court. Read in connection with the general provisions which have been referred to, the language in sections 12 and 21 of Act No. 232, Pub. Acts 1903, cannot be construed as conferring any power to dissolve a corporation. It must be held, therefore, that the Bialy Hardware & Supply Company is not dissolved. Calkins v. Bump, 120 Mich. 335, 342 (79 N. W. 491). This being so, it would appear that complainant has a valid judgment against it, since it was subject to be sued, and its failure to elect officers resulted in continuing the old officers in power. There was proper service of the summons, and the justice acquired jurisdiction to render the judgment which was rendered.

To find that the Bialy Hardware & Supply Company has a legal existence — has not been dissolved — is not to find that it is legally or equitably the owner of any property, or that the sale of its property to defendant Bialy was fraudulent and ought to be set aside. In a proper case the court has power—

“to decree satisfaction of the amount remaining due on such judgment, out of any property, money, or other things in action belonging to the defendant, or held in trust for him, * * * which shall be discovered by proceedings in chancery whether the same were originally liable to be taken in execution at law or not.” 1 Comp. Laws, § 437 (4 How. Stat. [2d Ed.] § 11954).

Under 3 Comp. Laws, § 9760, upon the petition of the judgment creditor the court—

“may sequestrate the stock, property, things in action and effects of such corporation, and may appoint a receiver of the same.”

The judgment debtor has no property. Complainant requires for his relief the setting aside, as to him, of the sale of the property of the judgment debtor to defendant Bialy. It is one of appellant’s contentions that the sale was not fraudulent, and therefore cannot be disturbed. Assuming that in any case such relief may be given upon a judgment creditor’s bill, or under the statute above referred to, it is necessary to look more closely at the nature of his demand, since his judgment was obtained nearly two years after the sale of the corporate assets.

It appears that all debts of the judgment debtor were paid before the attempted voluntary dissolution of the corporation. In the year 1905 the corporation sold to complainant goods, roofing, valued at $97, upon which $20 was paid in October, 1905. In 1907, on January 24th, it addressed a letter to complainant about this account, insisting upon payment. This letter was received by complainant, who on January 31st paid an additional sum of $50 and took a receipt, reading as follows:

“Bay City, Mich., Jan. 31, 1907.
“Received of H. W. Simms fifty dollars to. apply account due. Balance $27.00 to be paid when the roof is repaired or to be leak tight.
“Yours truly,
“Bialy Hdwe. & Supply Co.,
“By R. C. Bialy.”

Later, complainant paid the balance of $27. In the letter of January 24, 1907, the judgment debtor said to complainant, among other things:

“You certainly cannot expect to hold back $77 for about one hour's work, which it would take to remedy the small leak in this roof which you seem to claim there is. We made no.guaranty upon this roof any further than to finish it complete when it was put on. This we have done, and no matter if the roof is paid for, we should feel in duty bound to make the roof tight no matter how many times we would have to go to do it. You have our goods and material, and we are entitled to the money.
“The guaranty has no strength unless the roof is paid for, and you cannot call upon us to remedy the defect until you have paid the bill, as the guaranty, if any was made, would protect you only so far after you have paid the account. If you will pay the account, we will give you a written guaranty that we will make the roof tight, as we are perfectly good for this. We think this all you could ask, as you know we could not get upon the roof now and do anything, while the weather is so cold, but we will have the man make this defect good as soon as the weather will permit.
“We want to do what we can to please you, but we do not like the arbitrary stand you take with holding our money and holding our goods also.
“We will wait until Monday, the 28th, and if you decide by that time not to pay the account, we will proceed to collect it.”

It appears, therefore, that at some time after January 31, 1907, complainant paid a balance of account, which was to be paid only when “the roof is repaired or to be leak tight,” and that more than six years after January 31, 1907, he began his suit in assumpsit against the judgment debtor, securing a judgment in September, 1913, presumably on account of the transaction to which the said letter and the said paid account relate. Complainant testified that in June, 1911, he stated to defendant Bialy that he had a claim for damages on account of a defective roof. Mr. Bialy testified that he heard nothing about the claim until about a year after the attempted dissolution of the corporation. We have no further information upon the subj ect. It is hardly conceivable that the j udgment debtor intended to defraud complainant, who had at most an unliquidated demand, if any demand, at the time the sale of corporate assets was made. There was no purpose of defrauding creditors generally because all debts of the concern were paid. There is no question of the good faith of the corporate officers or of defendant Bialy, who acted upon legal advice and whose notice was accepted by the secretary of State. Notice of the sale of corporate assets was at once published.

The judgment debtor has no legal or equitable interest in any property. I perceive no reason for holding that as to complainant the sale of its assets was invalid, or that the purchaser is a trustee for his benefit.

The decree should be reversed and bill dismissed, with costs of both courts to appellant.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    STEWARD v. TRAVERSE CITY STATE BANK.
    1. Accounting — Fiduciary Relations — Negligence.
    Where complainant and another conducted lumbering operations under the supervision of the latter, who permitted the parties with whom he dealt to' present accounts and charges that he paid without examination, and the business, being placed in the hands of a trustee, was continued in a correspondingly loose manner, on' an accounting between the persons in interest, the trustee was chargeable with losses sustained by reason of such negligence.
    2. Same — Trusts—Neglect.
    In examining the accounts of the trustee the court will not attempt to save him from the consequences of his want of care in keeping sufficient books, etc., and from the inaccuracies of his agent in keeping accounts of disbursements.
    Appeal from Grand Traverse; Mayne, J.
    Submitted April 20, 1915.
    (Docket No. 79.)
    Decided July 23, 1915.
    Bill by George W. Steward against the Traverse City State Bank and others for an accounting. From the decree rendered complainant appeals.
    Modified and affirmed.

      Covell & Cross, for complainant.

      Parm C. Gilbert, for defendants.
   Ostrander, J.

A considerable history of the cause will be found in the opinion published in 168 Mich. 258 (134 N. W. 196). Pertinent portions of the opinion, showing the reasons for reversing the decree and requiring a new accounting, are the following:

“The business was carried on, under the arrangement, from October until March. Of this fact there can be no doubt. It was thereafter continued, without any protest or demand on the part of complainant. Mr. Hannah had as much and the same authority to continue the business after March, 1905, as before that time. That complainant had little, if anything, to do with the business after March, 1905, is not a fact of any importance. . That Mr. Hannah declined to proceed with the business, if it was to be managed by complainant, or if he was to be employed at wages, is a fact easily accounted for. The understanding from the beginning was that Payn, and not complainant, should be manager, and to this complainant assented. ¡The bill of complaint was filed long afterwards. It is framed according to the theory that complainant is ¡entitled to an accounting and to have the fair and rea.sonable profits arising from the business applied in reduction of his debt. It is not intimated therein that authority to carry on the business had not been given. Complainant took the chances of a profit to be produced by Payn’s management, to which he expressly agreed, and Hannah’s capital, which he knew was being used. He never protested, never demanded, and never was refused, information. I am of the opinion that in so far as the account is stated according to the theory that any of the defendants should be charged, on March 20, 1905, or on any other day, with appropriating any of the property, or with dealing with it without authority, it is wrongly stated.
“It does not follow, however, that Mr. Hannah had the right to exercise no eare, or indifferent care, with respect to the enterprise. The agreement that Payn should manage the business did not relieve Mr. Hannah from all responsibility. His advances of cash and of merchandise were items of the cost of running the business, to be repaid before a profit would be shown. He was under some obligation to see to it that disbursements were properly made; that accounts Were properly kept. It appears that he gave the matter little or no attention, but advanced cash and merchandise, upon the demand of Payn, without supervision and with little inquiry. Probably no one may be truthfully charged with dishonesty. Yet it is clear that Payn permitted Harrington, who boarded some of his men, to be constantly and increasingly overpaid, when the exercise of ordinary business sense would have prevented such a result. Complainant should not be charged with such a loss. As to the amount of the indebtedness of certain contractors-who were overpaid, the conclusion, upon this record, cannot be so certain. Their accounts were not closed when Hannah took over the property, and it seems that then they had been, to some extent, overpaid. ■ But the testimony tends strongly to show that ordinary business prudence would have prevented further considerable overpayments. Taking over this business, as Mr. Hannah did, at the stage to which it had then been brought, continuing it after the manner in which it had theretofore been conducted, without changing or revoking contracts already made by complainant, Mr. Hannah did not insure the success of the business or agree that it should show a profit. In so far as losses can be traced to his failure, or to the failure of his representatives, to exercise ordinary care and prudence in conducting the business as it was conducted, they should be borne by defendants. It is impracticable for this court to state an account in accordance with the indicated rule.”

Upon a further hearing in the court below, a hearing which was pursued with deliberation and care, the court made and stated an account and entered a decree which required the surrender and cancellation of the complainant’s $6,000 note and the reconveyance to him of certain undisposed of property upon his paying to defendants the sum of $727.12, with interest from December 31, 1906. It is urged for the complainant that in the conclusions arrived at the court, in considering the losses attributable to the failure of Hannah, the trustee, to exercise ordinary care in the management of the trust estate, failed to observe the directions of this court and failed to charge to Hannah and the defendants various sums which ordinary care would have saved to the estate.

It is apparent at the outset that, lacking the details, the books, and memoranda which were before the trial court, we are limited upon this appeal to an examination of such evidences of mistake in the theory of making up the account and to such evidences of the improper allowance or disallowance of items as counsel are able to point out and sustain by the record.

The business which by mutual agreement was carried on after the trustee assumed control of the property consisted of lumbering operations. The business was in the immediate charge of one Payn. Money was advanced to Payn by the trustee, and merchandise was furnished upon Payn’s orders. The total of advancements so made exceeded $12,000. The mill at which lumber and shingles were manufactured belonged to a third party, who manufactured the shingles for 50 cents a thousand, and sawed the lumber for $3 a thousand board measure. Another person was employed by Payn to put in logs. According to defendants’ account, the amount received from the sales of lumber and shingles was about $10,000; the net loss some $3,000. It appears that Payn overpaid Harrington, a store and boarding-house keeper, overpaid the mill-owner, overpaid the man who undertook to put in logs, and that does not account for all money which he handled. We do not find serious dispute about the amount of advancements made by Mr. Hannah, or on his account, or about what he and his representatives after his death received from the property. The serious question is presented by evidence that Payn was permitted, without proper checking and examination of his pay rolls and other demands, to pay out money and secure merchandise which defendants charge to complainant’s account, for which complainant and the business received no benefit. He is charged by counsel with dishonesty in the use of money he received, which it is claimed ordinary care on the part of the trustee would have discovered. The defendants contend, and the contention is supported by testimony, that, after the trustee controlled the property, the business was conducted as it had theretofore been by the complainant himself; that portions of what now appear to have been overpayments made by Payn existed then; and that complainant was or should have been cognizant of the manner of conducting the business and of the methods employed by Payn. These matters were all of them considered in the court below; and after a careful examination of the record, with the aid of the briefs, we are impressed that in one respect only can we, upon the evidence produced, disagree with the conclusions evidenced by the decree. However much confidence the trustee, and the complainant as well, may have had in the integrity and the business ability of Mr. Payn, common business prudence required an examination of his demands for money and for merchandise which they did not have. Payn’s method of keeping account of his transactions, and the accuracy of his accounts, ought to have been investigated. And the duty to make the investigation rested upon the trustee, and not upon the complainant, after the trustee assumed control, and especially after complainant was excluded from participation in the business. Complainant’s general knowledge of the method of conducting the business will not be presumed, in the absence of qualifying testimony, to have included knowledge of Payn’s dishonesty, if he was dishonest.

It has been stated that one Harrington was a store and boarding house keeper. Men employed by Payn in the business boarded with Harrington. Their board bill was, or should have been, deducted from their pay roll accounts. Men employed by Payn traded at Harrington’s store. The amounts of their various accounts for merchandise were, or should have been, deducted from their pay roll accounts. The most of the merchandise furnished by Hannah and charged to complainant was shipped to Harrington, who at the end of each month furnished to Payn a statement of the board bills and store accounts of the men and was given credit for these amounts. At the end of each month Payn presented to Hannah a pay roll for all men employed by him, including his own time and board bill, making no deductions for the board bills and store accounts for which Harrington had received credit. Payn received from Mr. Hannah the sum of his pay roll as he presented it.

We are impressed that ordinary care would have discovered this condition. It is not easy to discover the exact amount which proper supervision in this respect would have saved to complainant. But, when the fact that the trustee was derelict in duty is established, the court will not be too nice in saving him from the consequences of his negligence. This is especially so when discovery of the exact amount chargeable to him depends upon the examination of inaccurately kept accounts of his agent’s disbursements. We are inclined to accept, in this respect, the computations made by complainant’s counsel. We are impressed that the testimony sustains the conclusion that Payn received from Hannah $2,309.09 for men’s wages which he never paid out for that or any other purpose, and that he overpaid Harrington $1,363.80. These two items amount to $3,672.89. The court below found defendants liable for overpayments to Payn in the sum of $749.27.

We do not find reason for disturbing the decree in other respects. The difference between the sum which should have been charged to defendants and the sum so charged by the court below is $2,923.62, requiring the decree to be amended so as to provide that defendants shall pay to complainant the sum of $2,196.50 instead of receiving from him $727.12. In other respects the decree is affirmed. Complainant will recover the costs of this appeal.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Moore, J.

text:
    WOLVERINE BRASS WORKS v. SOUTHERN PACIFIC CO.
    1. Constitutional Law — Interstate Commerce — Commerce — Overcharge — Jurisdiction.
    Id. an action by a shipper to recover back an amount paid as freight in excess of the lawful charge, the State court had jurisdiction to determine the right of recovery under 24 U. S. Stat. 387, and whether an overcharge in excess of the published rates had been made.

    2. Same — Evidence.
    In an action to recover an overcharge from defendant railroad company on the ground that the shipment was one of brass goods, subject to a lower rate than that collected (for supplies of plumbers), a decision or opinion of the interstate commerce commission that the shipment of wastes and overflows, together with other plumber supplies •in a single package, rendered applicable the rate of the highest rated article in the box, was not controlling and was properly rejected as irrelevant.
    Error to Kent; McDonald, J.
    Submitted April 26, 1915.
    (Docket No. 102.)
    Decided July 23, 1915.

      Assumpsit by the Wolverine Brass Works against the Southern Pacific Company for the recovery of an overcharge. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wilson & Johnson, for appellant.

      Rolland J. Cleland (Henry T. Heald, of counsel), for appellee.

         As to power of State court to pass, on interstate rates, see note in 28 L. R. A. (N. S.) 108.

   Moore, J.

This suit was commenced in justice’s court. It was appealed to the circuit court. The action was brought against the Southern Pacific Company to recover back a portion of certain freight charges paid by the plaintiff on certain shipments of freight. The plaintiff placed one construction, upon the published tariffs, which, if correct, would entitle it to the rate of $1.75 per 100 pounds. The defendant placed another construction upon the tariffs, which, if correct, would require a rate of $2.60 per 100 pounds. The defendant charged and collected from the plaintiff the $2.60 rate, and this action is to recover the difference between the two rates on the shipments made by the plaintiff. The jury returned a verdict for the plaintiff in the sum of $312, and the case is brought to this court by the defendant on a writ of error.

The merchandise was delivered to the Grand Trunk Railroad Company, and by the Grand Trunk Railroad Company and intermediate railroads delivered to the Southern Pacific Company, the defendant, who made the delivery to the consignee. The Wolverine Brass Works prepaid the freight at the rate of $1.75 per 100 pounds, being the tariff rate for freight moving from Grand Rapids to San Francisco applicable to “Valves and Fittings N. O. S. boxed.” At San Francisco the inspector reclassified the merchandise and the Southern Pacific Company collected the difference between $2.60 per hundred pounds and $1.75 per hundred pounds. The tariff and classifications governing charges to be made by carriers for the transportation of merchandise between Grand Rapids and San Francisco had been duly published and filed according to law at the time the shipment was made. In one of the tariffs there appears the following: “Plumbers’ Supplies, Plumbers’ Supplies N. O. S. in boxes and casks, second class.” The rate under this classification was $2.60, and was the rate which the railroad sought to charge.

There was also in force and effect at the time a published tariff known as the “Transcontinental WestBound Tariff 1 — G” as follows: “Brass Goods Not Silver Plated O. R. Wet and Corrosion. Valves and fittings N. O. S. boxed $1.75.” It was at this rate that the plaintiff paid the freight. In railroad tariffs the letters N. O. S. mean “Not otherwise specified.”

At the time the shipments were made two rules and conditions of freight tariffs were in force and effect as follows :

I. That the shipper is entitled to the lowest rate contained in the printed tariff which is properly applicable to the articles shipped.
II. That when several articles are shipped in one. box the rate which is applicable is that applicable ta the highest rated article in the box.

The plaintiff does not contend that the goods shipped might not have been properly classified under either head, but it does contend that under the tariff issued and published it was entitled to the lowest published rate, which was $1.75.

The first assignment of error is based on the court’s refusal to grant the defendant’s motion to dismiss. The ground of defendant’s motion was that a State court has no jurisdiction of the subject-matter involved in the claim of the plaintiff for the following reasons:

(a) That it is a matter primarily and exclusively within the jurisdiction of the interstate commerce commission.
(b) That since the commodities shipped were not specially mentioned in the tariffs under the names “wastes and overflows” and “traps,” the question of the proper classification of such articles is administrative in its character and calls for the exercise of the powers and discretion, conferred by congress upon the interstate commerce commission.
(c) The jurisdiction of the courts in such a matter would be inconsistent with the enforcement and purpose of the interstate commerce act, for plaintiff had not, prior to this suit, filed a complaint with the interstate commerce commission or obtained an order from said commission for reparation by reason of said alleged overcharge.
(d) Plaintiff’s claim is really based on an alleged violation by the defendant of one of the provisions of the interstate commerce act, to wit, that no higher rate should be charged than that stated in the tariff schedules, and of such a matter a State court has no jurisdiction, as the interstate commerce act gives jurisdiction to the interstate commerce commission or the federal courts for any violation of the interstate commerce act.

The defendant’s second assignment of error is based on the court’s refusal to receive in evidence a certified copy of a decision or report of the interstate commerce commission, which report was made in another case.

1. The first assignment of error is argued at g’reat length in the brief, and was also argued orally, counsel quoting freely from the interstate commerce act, known as the Hepburn act, and citing Texas, etc., R. Co. v. Oil Co., 204 U. S. 426 (27 Sup. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075); Texas, etc., R. Co. v. Tie & Lumber Co., 234 U. S. 138 (34 Sup. Ct. 885); Robinson v. Railroad Co., 222 U. S. 506 (32 Sup. Ct. 114); and other cases. The argument of counsel is, we quote from the brief:

“The purpose of the interstate commerce act was to establish uniformity of rates and to prevent discrimination in interstate shipments. The agency established for carrying out this purpose is the interstate commerce commission. To open this jurisdiction to the courts would, in the language of the Oil Co. Case, ‘he the absolute destruction of the act and the remedial provisions which it created.’ ‘For if, without previous action by the commission, courts assume jurisdiction of such matters, it would result that- unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as they would fluctuate and vary, dependent upon the divergent conclusions reached’ as to the proper classification of certain commodities, at least in cases where there was ambiguity or doubt as to the meaning of the terms contained in the published tariffs. ‘Indeed, to permit courts to do so would be wholly inconsistent with the administrative power conferred upon the commission.’ It would result in one rule in one jurisdiction and a different rule in another jurisdiction and ‘give rise to confusion, create unjust preferences, frustrate the purpose of the interstate commerce act and cause the act to destroy itself.’ ”

A reference to the cases cited by appellant will show them to be distinguishable from the instant case. In the present case the tariffs which should be controlling were duly published and filed. There was no question of the reasonableness of the rates filed therein. There Was no claim that an application of them would be discriminatory.

Section 22 of the interstate commerce act (25 U. S. Stat. 862) reads:

“* * * And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”

The case of Gimbel Brothers v. Barrett (D. C.), 215 Fed. 1004, is especially interesting, as it refers to some of the cases upon which appellant places great reliance. We quote:

“The impression first received upon the reading of the act (Interstate Commerce Act) is that the tribunal, whose powers may be invoked to redress the injury, is optional with the complainant. * * * A fuller consideration of the acts, however, soon discloses that certain of their remedial features are made subordinate to the administrative powers conferred, and the remedies afforded do hot become effective or cannot be applied except through or until after the exercise of these administrative powers, which are conferred, not upon the courts, but upon the commission. This makes necessary that in such cases the appeal of the person injured be made, or at least be first made, to the commission. This necessity arises, not because of a lack ■of jurisdiction, strictly speaking, in the courts, but because some facts upon which the judgment of the courts must be based can only be made to appear from the exercise of these administrative powers. To construe the acts as conferring these administrative powers upon the courts would not only work practical confusion, in that the results would vary in different jurisdictions and even in different cases, but such a construction would make the act self-destructive. This is the basis of the ruling in every one of the cases to which we have been referred. For illustration, in Texas, etc., R. Co. v. Oil Co., 204 U. S. 426 [27 Sup. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075], the carrier there had published its tariff or schedule of charges. The complaint was that these rates were unreasonable, and the right of action was based upon a finding to this effect. To render judgment against the carrier with the schedules in force involved this incongruity. The act required the carrier to file its tariff. It further required it to adhere to it when filed and to strictly observe it as filed. This is its plain meaning. How, then, could- it be construed to also mean that the carrier was bound to depart from the published rates? This and the practical difficulties in the way of any other construction of the act compelled the construction that the determination of the proper rate, or what the rate should be, or, in other words, the fixing of the rate, was committed to the commission and to the commission alone as an administrative act.
“The latest case on the subject to which we have been referred, that of Texas, etc., R. Co. v. Tie Co., 234 U. S. 138 [34 Sup. Ct. 885], affords another illustration of the same distinction. There the complaint was the refusal of the railroad to transport ties in pursuance of an alleged purpose to limit their sale market. The objection to any action by the court was that no rates for ties had been filed by the carrier, and, in consequence, no charge could be made for such service. There was a rate for lumber, and the question was whether this applied to ties. The court held this question 'was one to be primarily determined by the commission’ in the exercise of the powers conferred upon it by Congress, because the real purpose to be accomplished was an administrative purpose. These cases are in line with the previous cases ruled by the court upon the distinction between a matter being within the power of the commission to determine questions affecting it and the wisdom of a ruling made in pursuance of the power.
“The question thus ruled to be within the province of the commission to primarily determine is a different question from that raised by the allegation that a carrier has charged more than or otherwise departed from the published rate. This may involve the meaning of the tariff in order to determine the fact of the alleged departure. To hold that the court cannot determine the fact of whether the published rate or more or less than the published rate has been collected in a given case is to take from the courts the jurisdiction committed to them by Congress. Nor is this result changed by the fact of whether the rate be one which is fixed by an act of Congress, by a tariff or schedule of rates fixed by being filed by the carrier, or by a ruling by the commission. In any case, the fact of departure from it must be a fact within the province of the court to find, or it can never proceed to render judgment in any case.”

See, also, Louisville, etc., R. Co. v. Brewing Co., 172 Fed. 117 (96 C. C. A. 322, 40 L. R. A. [N. S.] 798); St. Louis, etc., R. Co. v. Oil & Cotton Co. (Tex. Civ. App.), 128 S. W. 1194; Western, etc., R. Co. v. Provision Co., 142 Ga. 246 (82 S. E. 644).

We think the court had jurisdiction to determine whether there had been an overcharge under the tariffs as fixed and published.

2. Did the court err in excluding the report of the interstate commerce commission? It appears in that report that the wastes and overflows were mixed in the package for shipment with other goods which were clearly plumbers’ supplies, and the whole shipment would be subject to the highest rated article in the box.

We discover no reversible error in the case. Judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


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    MARCELLETTI v. HAWLEY.
    Replevin — Possession—Animals—Process.
    In an action of replevin for a horse which had been taken in a former suit brought by plaintiff’s husband, and tendered back by the sheriff, the tender having been refused by defendant, the court erred in submitting the case to the jury; replevin did not lie against the defendant who was not in control of the animal.
    Error to Van Burén; Des Voignes, J.
    Submitted June 28, 1915.
    (Docket No. 67.)
    Decided July 23, 1915.
    Replevin by Luci Marcelletti against Fred Hawley for a horse. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      W. J. Barnard, for appellant.

      Duane H. Mosier and Earl L. Burhans, for appellee.
   Moore, J.

This is a replevin case growing out of a horse trade made upon Sunday. The plaintiff claimed to be the owner of the horse in question, and that she authorized her brother-in-law to sell it; that, instead of doing so, he traded it for a worthless animal. A replevin suit was begun in the name of the husband of the plaintiff. The property was taken by said writ from the defendant. It is the claim that this writ was sued out in the name of the husband, because of his imperfect knowledge of the English language, and after the return day, and before the adjourned day, the replevin case was dismissed. While the horse was still in the possession of the husband of the plaintiff in this suit, or in the possession of the deputy sheriff who served the first writ of replevin, a second writ of replevin was sued out in the name of Luci Marcelletti, and the deputy sheriff, armed with the second writ and leading the horse, sought out the defendant. What occurred is told by the officer as follows:

“Q. You went down there and got the horse on the first writ of replevin?
“A. Yes. * * *
“Q. Now, you never returned the horse that you got on the first writ of replevin to Fred Hawley until you went down with the second writ of replevin?
“A. No; before I served it I offered to deliver it to him.
“Q. Yes; before you served the second writ?
“A. Yes.
“Q. But the affidavit had been made up here in justice court, and the writ placed in your hands for service, before you ever tendered him any horse back; ain’t that true?
“A. Yes, sir.
“Q. So you had the second writ of replevin with you to serve on him, and went down there to serve it on him, and then says, ‘Here, take this horse,’ and intended to take it back from him on the second writ; was that it?
“A. That was what was done.
“Q. So you didn’t take this horse after the first case was dismissed, and go down and deliver it to him, and leave it in his possession?
“A. I tendered it to him.
“Q. No; I mean you didn’t go down there and leave it with him before you went down with any second papers, did you?
“A. No, sir.
“Q. So you had the horse in your possession, taken . on the first writ of replevin, up here, at the time the affidavit in this second case was made, didn’t you?
“A. Well, I couldn’t say as to that. I think Mr. Mosier gave me the papers in the second case. I am not positive who gave it to me.
“Q. You had the writ of replevin at that time, didn’t you?
“A. Well, I had the writ of replevin at the same time I was delivering the horse over to Fred.
“Q. And you had the writ of replevin in your possession up here for service in the second case before you had ever tendered him that horse; ain’t that true ?
“A. Yes. * * *
“Q. And what was said?
“A. Why,! told him I come to deliver up the horse; and he didn’t seem to want to take it. I returned the blind bay horse; gave it up to him.
“Q. Did you say anything to him?
“A. Why, I told him that I come to deliver it up to him.
“Q. How was you in custody of the horse there, leading it?
“A. Was I?
“Q. Yes?
“A. Yes.
“Q. What did you do with the halter stale?
“A. I offered it to him, but he wouldn’t take it.
“Q. What would he do?
<CA. Why, he kept backing off.
“Q. Did you keep walking up?
“A. I did. .
“Q. And he kept backing away?
“A. Yes; finally he stopped, and I gave him the writ of replevin back again.
“Q. At the time that you did this, on whose premises were you?
“A. Why, I was on his place where he rents, I expect.”

It was conceded on the trial, and is now conceded, that the Sunday trade was void, but it is claimed plaintiff cannot maintain this suit for two reasons:

First, there had been no return of the horse to the defendant after the dismissal of the first suit; and second, no demand was made of the defendant before instituting said suit, and no offer to return the property received from the defendant on the exchange of horses.

A request for a directed verdict was made and refused. The trial court was of the opinion that as Mrs. Marcelletti had authorized a sale and not a trade, that under the case of Trudo v. Anderson, 10 Mich. 357 (81 Am. Dec. 795), there was a case for the jury, and submitted it to thém. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error'.

Several groups of assignments of error are argued, but the important question is whether a verdict should have been directed in favor of defendant. It has already appeared that when the plaintiff sued out her writ of replevin the defendant was not in possession of the property, and when the officer tried to get him to take possession of it he declined to do so. Counsel for plaintiff have called our attention to some authorities which it is claimed justify what was done, calling especial attention to the notes to 18 L. R. A. (N. S.) 1271; but the case to which the notes are attached, and the majority of the notes, recognize the general rule that replevin will not lie against one not in possession. The question is not a new one in this State. In House v. Turner, 106 Mich. 240 (64 N. W. 20), Justice Montgomery, speaking for the court, said:

“Replevin is a possessory action, and does not lie against one not in possession of the goods at the time demand is made or the suit is begun. See Wells, Repl. § 134. And it is generally held that the possession of an officer who has seized goods on process in his hands is not to be considered the possession of the creditor in the writ, and that replevin does not lie against the creditor.”

See, also, Hickey v. Hinsdale, 12 Mich. 99; Gildas v. Crosby, 61 Mich. 413 (28 N. W. 153), and Eales v. Francis, 115 Mich. 636 (73 N. W. 894).

We think a judgment should have been directed in favor of the defendant.

The case is reversed, and no new trial ordered.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


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    McCULLOUGH v. McCULLOUGH.
    Defatji/e — Discretion of Court — Review.
    In a divorce case in which, the defendant wife sought to have her default vacated and upon contradictory affidavits of the parties the trial court was within its discretion in declining to permit defendant to file an answer; Chancery Rule No. 7, subd. d.

      Appeal from Ingham; Collingwood, J.
    Submitted June 22, 1915.
    (Docket No. 93.)
    Decided July 23, 1915.
    Bill by Robert E. McCullough against Dora A. McCullough for divorce. From an order denying defendant’s motion to vacate her default and from a decree entered in complainant’s favor, defendant appeals.
    Affirmed.

      David H. Crowley (McArthur & Dunnebacke, of counsel), for complainant.

      Jason E. Nichols, for defendant.
   Moore, J.

The following history of the case will be helpful in passing upon the questions now before us: On November 29, 1913, complainant filed his bill of complaint asking for a divorce against defendant on the ground of extreme cruelty. On December 11,1913, an affidavit of nonresidence was filed and an order of publication made and entered. On July 13,1914, proof of publication of this order was filed. On July 13,1914, an affidavit of nonappearance, affidavit of regularity, and order pro confesso were all duly filed and such later order entered. On July 13, 1914, the bill being taken as confessed by the defendant for failure to appear, proofs were taken in open court, and the complainant, Robert E. McCullough, and his brother William C. McCullough were sworn as witnesses. In accordance with a local rule, the proofs being sufficient, the case was held open before the entering of decree for a period of at least 30 days. On September 21, 1914, more than 2 months after proofs were taken, a decree was signed and entered granting to complainant a divorce from the bonds of matrimony. On November 27, 1914, defendant filed a motion to set aside her default and the decree entered, and that she be permitted to file her answer tendered therein. This motion was based upon defendant’s affidavit. In this affidavit she asked that the answer tendered with the motion be considered in support of such motion. On December 23, 1914, complainant filed his sworn answer and countershowing in opposition to such motion. On April 6, 1915, an order was made denying defendant’s motion to set aside her default and the decree. From this order the case is brought here by appeal.

In disposing of the motion, the chancellor made use of the following language:

“After listening to the arguments of counsel, and after a careful consideration of the matters set forth in defendant’s motion and answer, together with the testimony in the original hearing, as well as the answer of complainant to the motion or petition, this court is convinced, and gives as an opinion, that:
“Neither the private interests of the parties to the suit nor the interests of the public or the public good justify setting aside the default and decree and opening the case to a rehearing.”

Counsel for the appellee say:

“The following questions are involved upon this appeal: (1) Is appeal the proper remedy, or should the questions presented be disposed of on mandamus ? (2) Will this court review the discretion of the circuit judge in refusing to set aside the default and decree and permit the defendant to file her answer tendered therein?”

The record is before us. We are favored with elaborate briefs, and have listened to oral arguments, and for that reason will refer only to the second question:

Chancery rule 7, subd. (d), reads as follows:

“An order entered under these rules may be set aside on special motion, for cause shown, in the discretion of the court, on such terms as may be deemed just and proper. But, to entitle a defendant to an order setting aside his default for want of appearance or answer, he shall proffer a sworn answer showing a defense on the merits as to the whole or a part of the complainant’s case.”

We have already seen that the proceedings leading up to the decree were regular. The motion to set aside the default was supported by an affidavit and the sworn answer of defendant. These were met by the affidavit of the complainant, who either denied or explained each of the charges made in the answer.

We have read the entire record with care. We do not think the chancellor abused the discretion given him by the rule in his disposition of the motion. See Detroit Tug, etc., Co. v. Circuit Judge, 75 Mich. 360 (42 N. W. 968); Mills v. McLeod, 86 Mich. 290 (49 N. W. 134); Id., 94 Mich. 627 (54 N. W. 387); Carton v. Day, 157 Mich. 43 (121 N. W. 295); Boynton v. Circuit Judge, 163 Mich. 500 (128 N. W. 738); Burgard v. Burgard, 175 Mich. 565 (141 N. W. 549); Emery v. Airth, 180 Mich. 433 (147 N. W. 536).

The decree and order are affirmed.

' Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


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    HARRIS v. ROYAL OAK SAVINGS BANK.
    Negligence — Infants—Parent and Child — Personal Injuries— Signs.
    Where plaintiff, an infant, accompanied his mother upon an occasion when she entered defendant bank on business and with his brother went to and attempted to look out of the window to observe some passing occurrence and, raising himself by means of a sign that defendant maintained in the window, caused the same to tip over upon himself and the other child, evidence that plaintiff’s father afterwards looked to ascertain what fastenings there were, and discovered none, tended to sustain his claim of negligence and justified the trial court in submitting it to the jury.'
    Error to Oakland; Smith, J.
    Submitted June 23, 1915.
    (Docket No. 58.)
    Decided July 23, 1915.
    Case by Donald M. Harris, an infant, by his guardian, Charles W. Harris, against the Royal Oak Savings Bank for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Perry & Lynch, for appellant.

      Andrew L. Moore, for appellee.
   Moore, J.

This is a personal injury case. Upon the trial the defendant offered no testimony. From a verdict and judgment in favor of the plaintiff in the sum of $800 the case is brought here by writ of error.

Counsel are agreed that the only question is: Was there such proof of the negligence of defendant as to justify the submission of the case to the jury? The testimony offered on the part of the plaintiff was in substance that the mother of the plaintiff went into the bank of defendant about 9 o’clock one morning to do business, accompanied by the plaintiff, who was something more than two years old, and another child nearly five years old. We quote from the record:

“When I entered the bank, there were in the lobby of the bank, as near as I can recall, three persons. * * *
“Q. So that, when you went into the bank, did you go directly to the cashier’s window to transact some business?
“A. I did, because I waited my turn. I went within possibly four or five feet of the window and was waiting. The entrance to the building is on the northwest corner, and the front of the building faces to the west. All of the windows in the front of the building are south of the door. While myself and the two children were waiting, we were about in the center of the room, as near as I can remember. The children were with me until they were attracted by an occurrence across the street. A couple had been married in the Catholic church that morning, and had come up from the church to the corner on the street immediately opposite the bank to take an electric car, and several people were with them. * * * '
“Q. State what occurred — just what you saw the children do, and what happened.
“A. I was looking out of the window to see those people waiting for the car, and the children were anxious to know what was going on, and went to the window, and not being tall enough to look over the large sign sitting on the sill, the oldest boy put his hand on it, on top of it, and raised himself up on his tiptoes and looked over, and as he raised up the sign tipped over and fell upon both children, catching them both.”

On cross-examination:

“When my attention was directed to the people out on the street, I stepped a little towards the window, and the children stepped a little further to the window. They went the rest of the way. At the time the accident happened I was standing still, and I should judge was about eight feet from the sign. The oldest boy could not see over it readily, and put his hands on top of the sign, raised on his tiptoes to look over, and the signboard immediately gave way. There was no other, person nearer the signboard than myself and the two children.”

The father testified that soon after the accident he went to the bank. We again quote from the record:

“I went to the bank an hour or better after I heard of the accident. The sign was then up in the window.
“Q. Will you describe as best you can this sign to the jury?
“A. Well, I had— I couldn’t swear positive as to the exact measurements, but the sign is at least 12 feet long, and it is 22 inches wide over all, and it is bound on the outside with a strip, originally, I think, '3-inch strip, and the edges of it rounded, same as rounded out like that, same as the base of a step, making a binding on the sign hardly the width of that, not quite as wide, and it is paneled around the outside with 6-inch boards, and one panel broke down- through the center, and it is at least 22 inches in width and 12 feet long. It is a bank sign, and extends the whole width of the bottom of the window. The window is one piece of. plate glass. On that day, when I went to the bank, I made an examination of the sign, with a view of ascertaining what kind of fastenings, if any, had been on the sign.
_ “Q. What did you find as to there being any indications on the sign of how it had been fastened across the window?
“A. No indication whatever as to the way it was fastened at the time I looked at it.
“Q. That was after it had been put back?
“A. Yes, sir.
“Q. Were you able to discover that there was anything about the sign that had been fastened to the casing of the window?
“A. No.”

We think this testimony justified the jury in finding defendant was negligent.

Judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


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    TOLSMA v. WAYNE CIRCUIT JUDGE.
    Mandamus — Costs—Judgment—Final Order — Review on Error —Partition—Taxation oe Costs.
    On mandamus to compel the judge of a circuit court to tax certain claimed items of costs in favor of the prevailing party following an appeal to the Supreme Court in partition proceedings, the court will decline to order the relief asked for if no final determination and judgment has been reached or entered in the lower court; the cause having been remanded for further proceedings.

    Mandamus by Charles S. Tolsma and another against George P. Codd, one of the circuit judges for the county of Wayne, to require respondent to enter an order taxing the costs of relators in certain partition proceedings.
    Submitted June 29,1915.
    (Calendar No. 26,737.)
    Writ denied July 23, 1915.

      Arthur E. Schreiter and Jasper C. Gates, for relators.

      James McNamara, for respondent.

         As to use of mandamus in the exercise of superintending control over inferior courts, see note in 51 L. R. A. 33.

   Moore, J.

This is mandamus to review the action of the circuit judge in declining to tax certain costs. These proceedings grew out of the order of this court when the case was here before. It is reported in 180 Mich. 79 (146 N. W. 412), and a reference to the opinion will aid in understanding the questions now presented.

The case was remanded for further proceedings, and it was stated: “Defendants will recover costs of both courts.” Defendants presented for taxation a bill of costs of this court. The clerk declined to tax the bill as presented, but taxed the costs at $82.83. A bill of costs, was then presented to the clerk of the lower court for taxation, containing the following items:

“Disbursements of tbe above-named' defendants in tbe circuit court, $2,196, itemized as follows:
April 18,1913. Casb paid Massachusetts Bonding & Insurance Company, premium on . bond appearing on pages 24-25 of tbe printed Supreme Court record........... $52 00
March 22, 1913. Casb paid county clerk, filing said bond............................... 1 00
July 3, 1913. Casb paid Massachusetts Bonding & Insurance Company, appeal bond to stay proceedings...................... 5 00
July 3, 1913. Casb paid county clerk for filing last said bond.......................... 1 00
One-half fee paid receiver as per circuit court order dated June 11, 1914. Total amount paid receiver, $2,622.95. One-half of this fee paid by defendants.........1........ 1,311 47
One-half fees paid commissioners on partition as per circuit court order dated July, 1913. Total fee paid, $1,500. One-half of the same paid by defendants................ 750 00
One-half attorney fee, paid as per said circuit court order, June 11, 1914. Total fee, $150. One-half of same paid by defendants 75 00
$2,195 47”

This bill of costs was afterward brought on before the circuit judge on a motion for retaxation. Objections were made to the taxation, and affidavits were filed by both parties to the litigation. The return of the circuit judge is in part as follows:

“10. This respondent further shows that after hearing the arguments of counsel for the respective parties, and upon due consideration of all the facts in‘the whole case, which was tried before this respondent in the Wayne circuit, this respondent denied the proposed taxation of costs for the following reasons:
“(a) Because the item of $52 for cash paid the Massachusetts Bonding Company, for a bond covering the proposal made by the defendants and appellants after the decision of respondent, was a matter not involved in the issues being tried in said cause, and was made merely for the personal convenience of said defendants and appellants, and therefore not legally taxable in said cause.
“(b) That the $1 paid to the county clerk for filing said bond was part and parcel of the same proceeding, and not legally taxable therein.
“(c) That the $5 paid the Massachusetts Bonding Company, to stay the proceeding in said cause, and the $1 paid the county clerk as a fee for filing the same, formed no part of the legal costs incurred in said cause according to the issues framed therein.
“(d) That the receiver, appointed for the purpose of conserving the assets of all of the parties to said estate, is still acting in said capacity, and if any part of the costs for the payment of the receiver is legally taxable under the decision of this court in said cause, it can only be taxed after said receiver has completed the work for which he was appointed at the joint solicitation of the parties, all of which can only be determined when said case is finally disposed of in the circuit court for Wayne county, where it is now pending.
“(e) That in the cause each of the parties appointed a commissioner to represent their respective interests, with the understanding that each of the parties was to defray the expense of such appointment; that the third commissioner was appointed by this court with the understanding that each of the parties hereto would pay a half of the expenses incurred by such commissioner; that all of such expenses have been paid according to the understanding and agreement of the parties hereto; that said cause is now pending before the circuit court for Wayne county for a final determination, and if the expense incident to such appointment can be legally taxable'against the defeated party it cannot be taxed at the present time, or,_ until a final order or decree is made and entered in said cause.
“(f) That the attorney fee of $75 for legal advice to the receiver is not a charge growing out of the issues involved in this cause; and, as each of the parties hereto have paid their proportionate share thereof, the whole matter should await final determination of the circuit court for Wayne county.”

It is clear from the return of the circuit judge that the case is still pending before him, and that no final order or decree has been entered therein. We think the reasons given by him are adequate, and decline to interfere by mandamus now.

Writ is denied.

Brooke, C. J., and Ktjhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    SWEETNAM v. SNOW.
    Automobiles — Master and Servant — Personal Injuries — Negligence — Liability of Garage Proprietor.
    Plaintiff was injured by an automobile owned by the defendant but driven by an employee of a local garage owner while defendant was absent from the city. Under a contract between him and the keeper of the garage the latter, for a consideration, had agreed and undertaken to supply a driver to deliver and return the car to the garage as defendant’s needs might require. Defendant had no control over the choice of chauffeur, who was paid and controlled by the proprietor of the garage; heló, that no action lay in plaintiff’s favor against the automobile owner and that the relationship of master and servant did not exist between the driver and the proprietor of the car.

    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted June 30, 1915.
    (Docket No. 48.)
    Decided July 23, 1915.
    Case by Euretta B. Sweetnam against Warren H. Snow for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed'; new trial denied.

      Travis, Merriek & Warner, for appellant.

      Swarthout & Master, for appellee.

       As to liability of automobile owner for negligence of chauffeur furnished by third person, see notes in 39 L. R. A. (N. S.) 933; 48 L. R. A. (N. S.) 424.

   Moore, J.

The plaintiff, a school-teacher, 39 years of age, was struck by an automobile owned by the defendant, but driven at the time by an employee of a public garage where the defendant kept his car. For the purpose of mailing a letter in the United States mail box affixed to the south side of the front vestibule of a trolley car, the plaintiff stood in the street near where the front end of the car would stop. After it stopped and she had mailed her letter, in order to regain the curb the plaintiff walked north past the front end of the car, stepped into the north roadway of the street, and was struck by the automobile, which was going in the same direction as the street car. The two lights of the automobile were burning. Proof was introduced by the plaintiff tending to show its speed was from 18 to 20 miles an hour. The automobile, which was a five' passenger touring car, was driven at the time by a Mr. Abbott. The defendant was in Boston at the time. There was evidence that the wife of the defendant had driven the car earlier in the evening. Mr. Abbott called for the car to take it to the garage. The accident occurred on one of the direct routes between the residence of defendant and Mr. Dowling’s garage, which were over a mile apart. The defendant purchased the automobile of Mr. Dowling about six months before the accident, and both he and his wife were in the habit of driving it. He employed no chauffeur, and had no garage of his own. He had a contract with Mr. Dowling, to which reference will be made later.

At the close of the testimony on the part of the plaintiff, counsel for the defendant made a motion for a directed verdict for the defendant for various reasons. The trial judge denied the motion, and the defendant rested without introducing any testimony, The judge submitted the case to the jury upon the question of Mr. Abbott’s negligence, and the plaintiff’s contributory negligence, directing them that Mr. Abbott at the time was acting for Mr. Snow under a contract with Mr. Dowling, and, while so acting, Mr. Abbott was to be regarded in law as the servant of Mr. Snow. The jury returned a verdict of $2,600 in favor of the plaintiff. A motion for a new trial was later denied. The case is brought here by writ of error.

We quote from the brief of counsel for appellant:

“The questions we raise are but three in number, and may be stated in the form of the following propositions affirmed by the appellant, namely:
“I. The trial court erred in charging the jury that, as a matter of law, the relationship of master and servant existed between the defendant and Abbott.
“II. The plaintiff was guilty of contributory negligence, as a matter of law.
“III. The trial court erred in holding applicable to this case the ordinance of the city of Grand Rapids, relied upon by the plaintiff, relating to the management of motor vehicles in proximity to any street car which has stopped for the purpose of taking on or discharging passengers.”

In our view of the law when applied to the facts disclosed by the record, it will be necessary to discuss the first proposition only.

Mr. Dowling was called as a witness, and, after testifying about his relations with the defendant, he gave the following testimony, to which plaintiff attaches much importance:

“During the time that Mr. Snow desired a driver, I did not have any control over the speed that the car should go, or any control whatever as to the manner it should run, or as to where it should go. During the time that the car was stored with me, I did not have any arrangements whereby I had the right to rent the car or to let it out or run it myself.
“Q. Was there in your contract any time when you had control of the movements' of the car outside of the time when it was in your garage building?
“A. No, sir.”

It is apparent, as will appear later, that these were conclusions of the witness rather than a statement of the facts. Mr. Dowling’s cross-examination shows what the contract between him and Mr. Snow required him to do. We quote from his cross-examination:

“My contract with the defendant was entered into in July or August, 1913. I recollect that Mr. Snow made a proposal to me, or inquired as to what I would perform certain enumerated services for per month. His inquiry related to services which he desired in the way of keeping the car at my garage, washing it, polishing, and oiling it. He also inquired as to my calling for the car at his residence or elsewhere in Grand Rapids and delivering it to him. I did not close a bargain with him at the first interview, but the matter was taken up subsequently, at which time we reached an agreement at $15 a month. I undertook by that agreement to perform all the services that I have mentioned for Mr. Snow, including the delivery of his car at his request at such place in Grand Rapids as he might designate, and also the getting of his car at such place in Grand Rapids as he might designate and the returning of it to my garage. I undertook by that contract to take good care of the car while it was in my possession.
“Q. Was anything said by you or by the defendant when you were entering into that bargain with him about what particular man should be permitted to drive his car?
“A. Nothing, only that * * * I was to furnish a man capable of driving the car to and from his residence.
“Q. The selection of that man was left to you, was it not?
“A. Yes, sir.
“Q. Did Mr. Snow reserve any right to select the man in your employ who should drive his car?
“A. No. * * * When Abbott entered my employ about December 1st, this contract between Mr. Snow and me had been in force some four or five months, and during that time I had stored and cared for his car at my garage, and men in my employ had delivered the car at his residence and called there for it during those four or five months prior to Abbott’s coming into my employ. There were probably three or four different men who had done that. I hired all of those men, and I hired Abbott at a specified wage, and I paid that wage. Neither Mr. Snow nor anybody else contributed to pay that wage. Mr. Snow did not have anything to do with hiring Abbott or any of the other men who had ever driven his car out of my garage.
“Q. What were your instructions to your men in the garage in reference to using the cars of your customers ?
“A. They were instructed never to use a customer’s car except on order of the customer.
“Q. You would discharge a man if you found that he had taken a customer’s car without authority, would you not?
“A. I certainly would. * * * I agreed with Mr. Snow that part of the services to be rendered by me for $15 a month with respect to his car was to cause his car to be taken in on request from his house to my garage.”

Mr. Snow was called under the statute by the plaintiff as a witness and testified as to the ownership of the car. He then testified to the contract between himself and Mr. Dowling. His testimony in that regard is in accord with the testimony of Mr. Dowling.

The attorneys for the plaintiff cite, as sustaining the construction given to the contract by the trial judge, 26 Cyc. at pages 1519 and 1522, and also particularly the cases of Janik v. Motor Co., 180 Mich. 557 (147 N. W. 510, 52 L. R. A. [N. S.] 294), and Pease v. Gardner, 113 Me. 264 (93 Atl. 550). A reading of these authorities does not impress us the same as they have impressed counsel. So far as they are applicable to the instant case, they tend to support the conclusion that Mr. Abbott was not an employee of the defendant.

The case of Tornroos v. R. H. White Co., 220 Mass. 336 (107 N. E. 1015), is an instructive one. We quote from it:

“The material facts out of which these actions arise are these: The Autocar Company sold to the R. H. White Company two motor trucks, and agreed as a part of the contract to furnish with each for seven days without cost a chauffeur who was. a thorough mechanic and who would instruct the men of R. H. White Company and to ‘garage’ the' trucks, including the making of all ordinary repairs, for 12 months. The contract was in writing. During the seven-day instruction period, chauffeurs took the trucks from the garage of the Autocar Company and proceeded to the stable of the R. H. White Company, where one of its men boarded each of the trucks, which thereafter were used in the delivery of goods of the R. H. White Company until the end of the day, when the men of the R. H. White Company left, and the trucks were then driven from its stable to the garage of the Autocar Company by the chauffeurs. During the day the servants of the R. H. White Company gave directions as to the streets and houses to which the trucks should be driven in the delivery of goods, but the manner and speed of driving was wholly within the control of the chauffeurs, who were skilled mechanics in the general employ of the Autocar Company. On one of the journeys from the garage of the Autocar Company to the stable of the R. H. White Company during the seven-day period, and when the chauffeurs employed and paid by the Autocar Company were alone on the trucks, the plaintiff Karl was injured, as has been settled by verdict of the jury, while he was in the exercise of due care, through the negligence of the driver of one of the trucks. The jury found specifically that the negligent chauffeur at the moment of the .accident was a servant both of the R. H. White Company and of the Autocar Company. It is contended by each of the defendants that, as to it, this finding was unwarranted, and that a verdict should have been directed in its favor.
“The general principles of law which govern cases of this kind have been considered frequently and are well settled. In their application distinctions of nicety may arise when one in the general employment of another is by his consent lent or hired by his master to work for a third in some special service. The test to determine the legal responsibility of that third person for his conduct is whether, in the particular service performed by him, he continues liable to the control •and direction of his master as to the means to be employed, and the result to be achieved, or becomes subject to that of the third person. This must be considered, as was said by Chief Justice Knowlton in Shepard v. Jacobs, 204 Mass. 110, at page 112 [90 N. E. 392, at page 393; 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648], not merely with reference to ‘the general business which the act is intended to promote, but the particular business which calls for the act, in the smallest subdivision that can be made of the business in reference to control and proprietorship.’ The particular business which the negligent chauffeur was engaged in doing at the time of the accident was that of driving the truck. The driving of the truck during the seven-day period was, by the terms of the contract, exclusively within the control and direction of the Autocar Company. The truck was being driven to the place where the instruction of the servant of the R. H. White Company was to begin. But that place had not been reached. The man to be instructed had not yet appeared on the scene. The instruction had not begun. No employee of that company was on the truck at the time. It was not being used in its business of delivering goods. It was not even being employed for the instruction of its servant. It was wholly in the management and control of the Autocar Company. It was being taken by that company pursuant to its contract to a point where further performance of its contract was to take place. The business of the R. H. White Company had not begun. The only matter about which that company could then have given any authoritative direction was at most as to the place where the instruction should be given and to which the truck should be taken for that purpose. But it could say nothing respecting the route, speed, or general or particular method of driving. Its representative was not present and was not intended to be present at the time of the accident, because its business then was not being done. It was not in a position and had no power to give any direction as to the concrete act of neglect which caused the injury. The chauffeur was not selected by the R. H. White Company. It did not hire him, nor could it discharge him or refuse to accept him, provided he was competent; it did not pay him directly or indirectly, save as his compensation may have been included in the cost of the truck. The circumstance^ that the truck belonged to the R. H. White Company is an important, but not decisive factor. See Trombley v. Stevens-Duryea Co., 206 Mass. 516 [92 N. E. 764]. It is not quite enough to countervail those mentioned, which, being substantially undisputed, show, as matter of law, that the injuries to the plaintiffs were not caused by the R. H. White Company.
“On this point the case is close to the line, and there are none of our decisions precisely in point, but Bowie v. Coffin Valve Co., 200 Mass. 571 [86 N. E. 914]. Id., 206 Mass. 305 [92 N. E. 334]; Dutton v. Amesbury National Bank, 181 Mass. 154 [63 N. E. 405], and Fleischner v. Durgin, 207 Mass. 435 [93 N. E. 801, 33 L. R. A. (N. S.) 79, 20 Am. & Eng. Ann. Cas. 1291], are somewhat analogous, and like conclusions there were reached. Kellogg v. Church Charity Foundation, 203 N. Y. 191 [96 N. E. 406, 38 L. R. A. (N. S.) 481, Am. & Eng. Ann. Cas. 1913A, 883, and note 885], and Quarman v. Burnett, 6 M. & W. 497, go further than is required to relieve the R. H. White Company from liability. In those two cases the defendants owned the vehicles, which were being used in their business by a driver furnished under contract by a third person, who alone had the authority to hire, discharge, and direct the driver as to the details of his duty of driving, and they were exonerated from liability. Other cases on all fours with the cases against the R. H. White Company hold that the defendant is not liable. Neff v. Brandeis, 91 Neb. 11 [135 N. W. 232, 39 L. R. A. (N. S.) 933]; Quelette v. Superior Motor & Machine Works, 157 Wis. 531 [147 N. W. 1014, 52 L. R. A. (N. S.) 299]. See, also, Meyers v. Tri-State Automobile Co., 121 Minn. 68 [140 N. W. 184, 44 L. R. A. (N. S.) 113]; Dalrymple v. Covey Motor Car Co., 66 Ore. 533 [135 Pac. 91, 48 L. R. A. (N. S.) 424].
“It is plain, from what has been said, that the Auto-car Company is liable. The injuries were the direct result of a negligent doing of its business by its servant hired by it and at the moment engaged in the performance of his duty as its employee. The actions against that defendant are well within numerous of our cases. They are in legal intendment almost exactly like Roach v. Hinchcliff, 214 Mass. 267 [101 N. E. 383]. They are in principle indistinguishable from Driscoll v. Towle, 181 Mass. 416 [63 N. E. 922] ; Corliss v. Keown, 207 Mass. 149 [93 N. E. 143]; Hunt v. New York, New Haven & Hartford Railroad, 212 Mass. 102 [98 N. E. 787, 40 L. R. A. (N. S.) 778]; Brow v. Boston & Albany Railroad, 157 Mass. 399 [32 N. E. 362]; Hussey v. Franey, 205 Mass. 413 [91 N. E. 391, 137 Am. St. Rep. 460]; Pigeon’s Case, 216 Mass. 51, 54 [102 N. E. 932; Am. & Eng. Ann. Cas. 1915A, 737]; Standard Oil Co. v. Anderson, 212 U. S. 215 [29 Sup. Ct. 252].

See, also, Quimby Co. v. Estey (Mass.), 108 N. E. 908, and the case of McBride v. Shingle Co., 173 Mich. 248 (138 N. W. 1077).

We think it clear that, when the injury for which suit is brought was sustained, Mr. Abbott was engaged in the work of performing the contract of his employer, Mr. Dowling, with Mr. Snow, and that the defendant was in no way legally responsible for his misconduct. It follows that a verdict should have been directed for defendant.

The judgment is reversed, and no new trial is granted.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Bird, J.

text:
    NIBLOCK v. SAGINAW CIRCUIT JUDGE.
    Costs — Mandamus—Practice.
    Mandamus will not lie to compel respondent circuit judge to vacate an order allowing a new bill of costs to be prepared and presented to tbe clerk, where defects were found in the one presented, on appeal to the court from the allowance of same by the clerk; the action of the court in allowing the bill to he withdrawn was in conformity with the rule. Jeffery v. Hursh, 58 Mich. 263 (27 N. W. 10).
    Mandamus by James Niblock against William G. Gage, one of the circuit judges for the county of Saginaw, to compel respondent to vacate an order denying petitioner’s motion for retaxation of costs.
    Submitted June 8, 1915.
    (Calendar No. 26,762.)
    Writ denied July 23, 1915.

      Devereaux & Quinn, for relator.

      Crane & Crane, for respondent.
   Bird, J.

Relator was plaintiff in the case of Niblock v. Schmiege, brought in the Saginaw circuit court, and was defeated therein, whereupon the defendant presented a tax bill of costs to the clerk for taxation. Relator objected to the taxation, but the objections were overruled, and the costs were taxed at the sum of $146. Relator appealed to the circuit court, where the affidavit of defendant as to the attendance of his witnesses was declared defective. The trial court permitted defendant to withdraw his bill of costs for the purpose of presenting a new one to the clerk. Relator objected to this practice, insisting that it was the duty of the trial court to tax the proper items and reject the improper ones, and he now asks this court for a writ of mandamus to compel the circuit judge to proceed to a taxation of the costs upon the bill as it then stood.

The action of the trial court in allowing defendant to withdraw his bill of costs appears to be in conformity with the rule laid down in Jeffery v. Hursh, 58 Mich. 246, 263 (27 N. W. 7, 10), where it was said:

“Ordinarily, when objections are made and defects pointed out, such as is done in this case, it is the duty of the party applying to tax the bill, if he wishes to remedy the defects, either to apply for a postponement and supply the defects by the adjourned day, or withdraw his bill and make a new application; and, if he fails or neglects to do so, it will be too late after taxation to do so, and the items will stand rejected,”

Relator bases his argument upon the case of Hawkins v. Circuit Judge, 62 Mich. 531 (29 N. W. 92), where it was said that:

“When an appeal is had from the clerk to the circuit court from taxation of costs, the case should not be remanded to the clerk for new action, but the taxation should be made by the court.”

The gist of the holding in Jeffery v. Hursh is that the circuit court should not remand a tax bill of costs back to the clerk for correction, but should either tax the costs itself or permit the bill to be withdrawn. Hawkins v. Circuit Judge follows Jeffery v. Hursh in holding that the taxed bill should not be remanded to the clerk for retaxation, but should be taxed by the court. It is nowhere intimated in the latter case that the rule laid down in Jeffery v. Hursh, permitting the bill of costs to be withdrawn, was to be vacated or changed. That part of the rule is not even commented on in Hawkins v. Circuit Judge. Inasmuch as the respondent returns that he gave permission to the defendant to withdraw his bill of costs, and that the defendant indicated that he would accept the privilege and act upon it, we think respondent was clearly within his authority.

The writ will be denied, with costs.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Stone, J.

text:
    BLOSS v. BLOSS.
    1. Divorce — Extreme Cruelty — Evidence—Profane and Threatening Language.
    Where defendant wife in her cross hill charged her husband with extreme cruelty in the use of violent, threatening and profane language and personal violence, evidence reviewed as a question of fact, and held, to sustain the conclusion of the lower court in granting a divorce to the cross complainant.
    2. Same — Weight of Testimony — Appeal and Error — Credibility of Witnesses.
    The trial court, who saw and heard the testimony and observed the conduct of the witnesses on the stand, is in a superior position to determine the weight to be accorded to their testimony and base conclusions thereon, and his determination will, for that reason, he given additional weight.
    3. Same — Alimony.

      Held, that an award of alimony of $5 per weeh for the support of an infant child of the parties was a proper amount to he awarded.

      4. Same — Solicitor’s Fee — Costs—-Decree.
    An award of $100 as solicitor’s fee to be paid by tbe complainant included tbe solicitor’s fee taxable under tbe court rule and it was erroneous to permit the defendant to tax a fee in addition to the $30 fee included by the provisions of the rule.
    5. Same — Household Furniture — Division of Property.
    While an order awarding to defendant wife the household furniture is not unreasonable, the court may restore to complainant articles given to him by his friends or relatives and peculiarly suitable to the use of complainant.
    6. Same — Costs.
    The complainant may also be required to pay a further sum as counsel fee in addition to the award of $50 for expenses of appeal granted by the Supreme Court.
    Appeal from Wayne; Codd, J.
    Submitted June 9, 1915.
    (Docket No. 22.)
    Decided July 23, 1915.
    Bill by Edward C. Bloss against Freda Bloss for divorce. Defendant filed a cross bill. From a decree for defendant granting her a divorce as prayed, complainant appeals.
    Modified and affirmed.

      'James H. Pound, for complainant.

      Allan H. Frazer, for defendant.
   Stone, J.

The bill of complaint was filed in this cause for an absolute divorce from the defendant upon the ground of extreme cruelty, and praygd for the custody of the infant child of the parties. The defendant answered fully, denying the charge of the complainant, and, claiming the benefit of a cross-bill, charged the complainant with extreme cruelty. The cross-bill was answered by specific denial of the charge, and the cause, being at issue, was heard upon testimony taken in open court. At the hearing the trial court granted a decree, dismissing complainant’s bill of complaint and granting a decree to defendant upon her prayer for affirmative cross-relief, giving her the custody of the child and making certain provisions by way of permanent alimony and counsel fees. From this decree the complainant has appealed.

The bill, of complaint was filed May 2, 1912. The complainant at that time was 25 years old, and the defendant about 21 years of age. The parties were married on August 11, 1910, and lived together until on or about April 23, 1912. Their only child, Edward G. Bloss, was born on May 30, 1911. As has already been stated, both parties to this cause charged the other with extreme cruelty, and the vital question in the case is, Which one of the parties hereto has maintained the charge? A careful reading of the record discloses the fact that there is an irreconcilable conflict in the testimony of the parties upon that subject. Most of the testimony upon both sides was given by the parties and their immediate relatives. The trial-judge saw and heard the witnesses in the case testify, and was in a better position to judge of the credibility of the witnesses than we are. We are of opinion that the charge of personal violence on the part of complainant was not sustained by the testimony, except by inference, but there was- considerable testimony given by witnesses outside the family circle, showing that complainant had been guilty of gross misconduct, amounting to extreme cruelty, in the use of profane, violent, and threatening language, severely scolding and reprimanding the defendant, charging her with neglecting her duties as a wife and mother, and with untidiness as a housekeeper; and, while the case as made by the defendant under her cross-bill is not a strong one, yet we are inclined to agree with the trial judge.

There would be no profit to the profession or to the parties interested in reviewing in detail the testimony in the case. There was testimony sufficient, if believed by the trial court, to warrant the decree which was made in the court below, in so far as the conduct of the complainant is concerned. This testimony was to the effect that complainant was profane in his language and rough in his conduct toward defendant and cross-complainant. We are satisfied from the testimony that the wife properly cared for her household and child, and was an affectionate and considerate mother, and that many of the charges of the complainant against her were not true. We shall not therefore disturb the decree granting a divorce to the defendant and cross-complainant. We think, however, that some of the provisions of the decree should be modified.

In our opinion the provision for permanent alimony and support should be limited to the sum of $5 per week, and should be for the support of the child, and payable as provided for in the decree below.

By the decree the trial court awarded to the solicitor for the defendant and cross-complainant a solicitor’s fee of $100 to be paid by the complainant and cross-defendant. We are not disposed to disturb this portion of the decree, but we think that no solicitor’s fee under the rule should have been taxed in the case. The decree provided that the said Edward C. Bloss should pay the expense already incurred by said Freda Bloss in carrying on and defending her suit in this cause, the same to be taxed. We do not think it was the intention of the trial court to include in such expenses the solicitor’s fee of $30 under the rule, and that sum will be eliminated from the decree.

We are not disposed to disturb the order awarding to the defendant and cross-complainant the household furniture save in the following particulars: We think there should be restored to the complainant and cross-defendant the following articles described in his affidavit found in the record, which articles appear to be in the possession of said defendant and cross-complainant, to wit: One cigar band smoker set; three packs of cards; two glass humidors; one shaving glass; one steel fishing rod and reel; one ice-box; one dining room table; six dining room chairs; two fancy pillows; one set of eight books; one rocking chair; one poker set; one brass dish; and one brass cuspidor. Many of these articles were given to the complainant and cross-defendant, or to the parties, by the relatives of the complainant; and while they are not of great value, we think they should be restored to him.

In our opinion the provision made by the trial court for the custody of the child should not be disturbed by us, and the same will remain, subject to change from time to time by the order of the court below, as provided by the decree.

In addition to the award of $50 to defendant,, made by this court on account of expenses of appeal,, the complainant will, by the decree of this court, be directed to pay to the solicitor for the defendant andi cross-complainant the further sum of $30 as counsel fee in this court.

Except as herein modified, the decree of the court below is affirmed. No further costs will be taxed in this court.

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

The late Justice McAlvay took no part in this decision.