text:
    SYKES v. VILLAGE OF PORTLAND.
    1. Negligence — Electricity—Precautions to Avoid Contact— Telegraphs and Telephones — Proximate Cause.
    Where defendant village constructed a lighting system, using heavily charged wires, dangerous to human life, and thereafter permitted a telephone company to erect poles and extend its wires in the streets, passing in one place over the wires of the village, and where it appeared that one of the poles of the telephone company was not properly guyed up or braced, so that wires sagged and came in dangerous proximity to the wires of the lighting plant at the place of crossing, and there was evidence tending to show defective or insufficient insulation, resulting in the burning off of a wire, and the death of a child who came in contact with it, the question of the negligence of defendant village was properly left to the jury. It could not be determined as a question of law that, because the wires of the village lighting plant were first in place, the negligence of the telephone company was the proximate cause of the injury.
    2. Same — Municipal Corporations — Governmental Functions.
    A municipality is not relieved of liability for negligence, in constructing or maintaining an electric light plant used for commercial purposes, on the ground that its business relates to governmental functions. When a dangerous condition becomes apparent, the officials in charge of the lighting system are charged with the duty of removing the danger, if possible, and stand in no different situation than (lo employees of a private corporation.

      3. Evidence — Identification.
    Evidence tending to show that a witness cut off one end of the broken wire and took it to the office of the electric light company, that another .witness was there, saw it, and the exhibit looked like the end of the piece, as he testified, that another witness cut off the small piece offered in evidence, and had been informed that the wire was the broken wire in question, warranted the court in receiving the exhibit as evidence.
    4. Same — Other Similar Wire.
    It was not error to- receive in evidence a piece of wire that ran parallel to the broken section, showing similar defects to those claimed to have existed in the insulation of the fallen section of wire.
    5. Appeal and Error — Mortality Tables as Evidence.
    Technical errors .in the admission of evidence and in charging the jury, not shown to be prejudicial, held, not reversible, the judgment- being small.
    Error to Ionia; Davis, J.
    Submitted April 15, 1913.
    (Docket No. 64.)
    Decided October 1, 1913.
    Case by John Sykes as administrator of the estate of John Sykes, Jr., deceased, against the village of Portland and Citizens’ Telephone Company for the wrongful killing of intestate. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Thomas E. Barkworth, William J. Stuart, and R. A. Hawley, for appellants.

      Ellis & Ellis and Scully & Davis, for appellee.

       On the question of municipal liability for injury to, or death of, traveler from electricity carried by wires strung along highway, see note in 22 L. R. A. (N. S.) 1176. And as to municipal liability for injuries by electric wires and appliances, generally, see note in 20 L. R. A. (N. S.) 648.
      The question of liability for injury or death of traveler coming in contact with electric wire in highway, generally, is discussed in notes in 31 L. R. A. 566 and 22 L. R. A. (N. S.) 1169.

   Kuhn, J.

This is an appeal from a judgment recovered by the appellee, as administrator of the estate of John Sykes, Jr., deceased, against the appellants, the village of Portland and the Citizens’ Telephone Company, for wrongfully causing the death of his son, said John Sykes, Jr.

The defendant the village of Portland has since 1896 maintained and operated an electric lighting plant, which is used both for municipal lighting and for furnishing light to private consumers. Prior to 1902 it had erected its wires along Brush street, an east and west street in said village. Crossing Brush street at substantially right angles are Kearney and Grant streets, and midway between these streets an alley runs north from Brush street. In 1902 a franchise was granted the Citizens’ Telephone Company

to erect its poles and maintain them with necessary equipment fbr an electric telephone zystem. A line of poles was placed on the alley running north and south, and wires were also stretched diagonally across Brush street and to a point in the alley about 58 feet north of the north line of Brush street. The relative situation of the poles and wires at the time of the accident which gave rise to this litigation is shown by the annexed plat, which is admitted to be approximately correct.

About 50 feet from the east line of the alley, on the north side of Brush street, the village had a pole from which electric light wires were extended te a pole on the west side of the alley about 79 feet north of the north line of Brush street. This pole, designated as “Pole No. 1” on the plat, contained a transformer. Across the alley and a little south from this pole was a pole of the telephone company, designated as “Pole No. 2” on the plat. The electric light wires were stretched underneath the telephone wires.

On the 21st day of April, 1909, plaintiffs decedent, a boy between nine and ten years of age, while passing along Brush street came in contact with one of the electric light wires which had become severed at a point about 10 or 15'feet from pole No. 1. No one saw the accident, but it is conceded that the contact caused his death. The short end of the broken electric light wire hung down from the transformer pole, and the long end had been carried by the wind or the recoil of the wire over the other electric light wire, which still remained intact, and had slid down this wire toward the street. When found, it extended across the worn path used as a walk to the electric light pole on Brush street near the house of a Mr. Flowers, being designated on the plat as “Pole No. 3.” The body of the boy was found in the path about six feet from this pole. The wires of the village carried about 2,000 volts of electricity and were of copper with ordinary cotton insulation. The telephone wires were uninsulated and carried only a small quantity of electricity. The telephone pole on the east side of the alley at the time of the accident was leaning from the perpendicular to the west several feet, and no guy wires or support of any kind had been placed to maintain it perpendicular. According to the reports of the weather bureau, a strong wind had been blowing during the day, and at 4 o’clock in the afternoon, which is, at least approximately, the time of the accident, it was blowing not to exceed 35 miles an hour, and there was a space of about 14 inches between the two sets of wires. It also appeared that about a year before this accident, at the point where these wires crossed in the alley, the electric light wires and telephone wires came into contact and burned off two inside telephone wires.

An employee of the Citizens’ Company testified that, when the wires came together the year before, the insulation on the electric light wires was “roughed up in two places,” and that so far as he knew they were never taped again until the accident happened.

At the time of the trial the. remaining electric light wire, which had not been removed at the time of the accident, was taken down and its insulation was discovered to be frayed at the places underneath the wires of the telephone company above it.

The declaration alleges that the immediate cause of the wires being down was as follows:

“That afterwards, to wit, on the 21st day of April, 1909, while said poles of the Citizens’ Telephone Company were so insecurely fastened and were without support or guy wires or otherwise, and when its uninsulated wires were sagging and in close proximity to the highly charged, poorly insulated electrical wires of the village of Portland, and when no guards of any kind had been provided by either of the said defendants to keep said wires from coming in contact with each other, and when the said wires of the village of Portland so uninsulated and heavily charged with electricity were running diagonally across said alley west of the property owned by the said Flowers in the village of Portland, close to and underneath the wires of the Citizens’ Telephone Company, and while a strong wind was blowing, causing the said corner pole of the said Citizens’ Telephone Company to sway and its wires to sag and strike said heavily charged electrical wires of the village of Portland where its wires were uninsulated and where they crossed said alley between Kearney and Grant streets at a point north of Brush street, and by reason of said contact or the weakness of the said heavily charged electrical wires of the village of Portland, caused by previous contact with the said Citizens’ Telephone Company’s wires, one of said highly charged wires of the village of Portland burnt off, or broke off, and fell to the ground, and by reason of such falling hung from the aforesaid pole of the village .of Portland standing on Brush street, to which one end of said wire was joined to the pole, and the free, broken end extended across a portion of the street, the part of the street used as a. sidewalk, and across the path of pedestrians who walked along the north side of Brush street.”

The grounds of negligence alleged by the plaintiff are concisely stated in the brief of counsel for the defendant village of Portland as follows:

“So far as the village of Portland is concerned, negligence is averred in that the village in its authority to the Citizens’ Telephone Company through the ordinance neglected to provide reasonable safeguards and to require the company to so construct and maintain its poles and wires and crossarms that in case of storm or accident its wires might not by sagging or otherwise come in' contact with the heavily charged primary wires of the village; further, that the village did not cause its, switchboard and contributing office to be so arranged that notice would be given to the men in the office of the condition of the wires, and did not keep a man constantly in attendance to look after and attend such wires, and that the village left its heavily charged wires in proximity and where they would be liable to, and did in fact, come in contact with the wires of the telephone company; that it further carelessly and negligently omitted, when it permitted the Citizens’ Telephone Company to run its lines along said alley, to place a pole on Brush street west of said alley and run the two wires north from that point and avoid crossing the wires of the said defendants; and further that the village knowing that the wires of the Citizens’ Telephone Company were strung and left within a few inches of its highly charged wires, Were in such close proximity that in case of rain; sleet, or wind, or sagging, such wires would in all human probability come together, and would either burn off the wires of the Citizens’ Telephone Company or its own wires, and well knowing that there was no support to the corner pole of the Citizens’ Telephone Company, by guy wires or otherwise, and that no span pole had been erected, and that the Citizens’ Telephone Company had not in any manner insulated its wires, and well knowing that the insulation of the wires of the village of Portland was broken, and poor, did not provide any span pole to keep the wires apart, or insulate its wires, or take any precaution to keep said wires from coming in contact, and did not set any pole west of said alley, and did not put its transformer on the street line, but left for a long time, to wit, for a year and over prior to the 21st day of April, 1909, said wires in said alley unprotected and in the careless condition described. And, further that it did not, when it permitted the Citizens’ Telephone Company to erect and maintain its wires, provide or adopt the usual appliances or methods to prevent contact between said wires or use any device to prevent contact, but on the contrary allowed and sanctioned the construction of the lines of the telephone company, and did not itself provide any protection for its wires and did not insulate its wires, but on the contrary, for a long time after the wires of the Citizens’ Telephone Company came in contact with the heavily charged wires of the village of Portland, and by reason of the contact burnt off and destroyed the insulation and weakened the said wires so that they were not strong and good, said village of Portland carelessly and negligently neglected to protect its wires or provide new wires for the wires so injured; and said village of Portland continued to allow and permit the wires of the Citizens’ Telephone Company to remain within less than one foot, to wit, between four and six inches, from its heavily charged electrical wires, well knowing that in case of a storm or wind said wires would come in contact and one or the other of said wires would burn off and fall to the ground. It further alleges want of inspection by the village of Portland and the consequent failure to discover and remove the defects and weakness caused by reason of the contact of its wires with the wires of the Citizens’ Telephone Company, and that the village did not maintain its wires so they would not fall and interfere with the safe use of the highway. It further charges the village of Portland with fault in not keeping its wires insulated, and that in the construction of its plant it did not arrange for its transformers to be placed on the poles of its main lines so that highly charged wires would not be needlessly run across private property, and with neglecting to have a transformer on its pole in the street and have the electric current reduced before it went through private property or across streets, sidewalks, or alleys.”

The plaintiff did not urge all of the averments of negligence above set forth, but, for the most part, they were submitted to the jury by the trial judge.

The village of Portland now urges that the court did not properly submit to the jury the question of proximate cause. It is claimed that they were first on the ground and that their poles and wires were in position when the franchise was given to the telephone company, and that, if any negligence was shown which resulted in the death of plaintiff’s decedent, it was the negligence of the Citizens’ Telephone Company and not that of the village. The plaintiff claims that after both lines were constructed, crossing each other, a duty developed upon each party to see that these lines did not come together and burn off and fall to the ground, and that one of the defendants could not excuse itself because it was on the ground first.

There does not seem to be any question that the telephone pole had been leaning over into the alley, bringing the wires into close proximity, so that they were not more than 14 inches apart, which experts testified was dangerous proximity. It is claimed that a reasonable inspection would have discovered this condition, and ordinary prudence would have caused both defendants to have taken proper precautions to prevent accidents by straightening the telephone pole, or replacing the insulation on the highly charged electric wires, or taking other precautions to prevent the wires from coming together.

Whether these defendants acted as an ordinarily prudent man would have acted under the circumstances was properly submitted to the jury. It must be said that this accident was the result of concurring causes, the removal of any of which would have prevented the accident.

The question of proximate cause arose in the case of Warren v. Railway Co., 141 Mich. 298, at page 302 (104 N. W. 613). The court said:

“In this connection it is urged that the proximate cause of the injury was not the want of insulation, nor the failure to guard the span wire, but it was the breaking of the tree. It is generally the case that an accident is the result of concurring causes. If the rain and snow never fell and the wind never blew, wires would be less likely to fall and break. In this case the span wire was hot where it was not intended to be. The telephone wire was pressed upon it when it was not so intended. The wire burned in two from the intense heat taken on from the span wire, and the ends fell. All of these were things to be anticipated and guarded against. If this was not done to the extent that a prudent man would do it, there was a failure of duty, which might be a concurring cause of the accident, making defendant liable. Thus we held that, where a horse was caused to struggle and injure his master through getting his foot through a hole in a bridge, the defect in the bridge was a proximate cause of the accident.”

In addition to the authorities cited in that opinion, see, also, Electric Railway Co. v. Shelton, 89 Tenn, 423 (14 S. W. 863, 24 Am. St. Rep. 614); Fox v. Village of Manchester, 183 N. Y. 141 (75 N. E. 1116, 2 L. R. A. [N. S.] 474); Cumberland Telephone & Telegraph Co. v. Ware’s Adm’x, 115 Ky. 581 (74 S. W. 289).

Exception is taken by the counsel for the village of Portland to the following request to charge, which was given:

“Fifth. It is claimed by the village of Portland when it erected its wires and poles that the construction at that time was correct, and that if any liability attáches it is from the fact that the Citizens’ Telephone Company, when erecting its own poles and constructing its wires, found the defendant village already in position under legal authority, and upon it was imposed the duty of doing everything that would be necessary for the protection of life and property; that it should have constructed its wires in some other way or put proper guy wires to its poles and used a guard wife, or some other instrumentality to keep its wires from coming in contact with the wires of the village. It is true that it was the duty of the Citizens’ Telephone Company, when it erected its poles and put up its wires, to use all necessary precaution to keep the wires from coming in contact with the highly charged wires of the village of Portland, but it does not by any means follow as a legal consequence that the existence of that duty relieves the defendant the village of Portland from its own duty in the premises. If it knew that these wires were in close proximity to each other, or that the poles of the Citizens’ Telephone Company were sagging and bringing its wires in closer proximity, it should have taken steps to relieve the situation from danger and' not have remained inactive simply because some other company had come to have a legal obligation to the public imposed upon it. If, after the village of Portland, defendant, placed its poles and constructed its wires, new facts or conditions arose making, in view of them, its first construction dangerous to the public, then it was their duty to have acted and so arranged their wires as to have rendered it improbable of contact at a point where it would be dangerous if it remained. If the situation was such as would have enabled the village of Port-* land to have forced by request or otherwise the Citizens’ Telephone Company to remedy the evil, then it was the duty of the village to make such request and see that the evil was remedied. If it failed of success in that regard, it should have applied some proper remedy itself.”

It is contended that this gave the jury the right to find the village guilty of negligence in the case at bar because of the nonaction or improper action of its legislative branch. While there are averments in the declaration on which such a claim might be based, no such claim was made by plaintiff’s counsel on the trial, and this was admitted and repeatedly stated in the presence of the jury. The only duty urged by plaintiff devolving upon the defendant village is the same duty devolving upon any private corporation running an electric light plant in a city or village. This electric light plant was erected for commercial purposes, and, as this court held in Hodgins v. Bay City, 156 Mich. 687 (121 N. W. 274, 132 Am. St. Rep. 546), the village is not relieved from liability for the neglect of its employees on the theory that the business relates to local governmental functions. See, also, Brantman v. City of Canby, 119 Minn. 396 (138 N. W. 671).

When a dangerous condition became apparent, it was the duty of the village officers in charge of the plant, if possible, to remove the danger, and, if the situation was caused by the telephone company, it was the duty of the village officers and employees to request them to remove it. In this regard it seems to us they occupy no different position than the officers and employees of a private corporation would occupy ■ under similar circumstances. The requests to charge given by the court with reference thereto were proper.

Upon the trial a short piece of wire was introduced in evidence identified as Exhibit 4, and it was claimed that it was cut from the loose wire which hung down from the transformer pole No. 1 on the day of the accident. It is urged that it was error to admit this exhibit in evidence, as it was not sufficiently identified. Witness Teachout, who had been in the employ of the village shortly before the accident and also in the employ of the telephone company, but at the time of the trial was working for the telephone company, testified that on the afternoon of the accident he took both ends of the broken wire down from one pole to the other and took them to the offices of the Electric Light Company, and said he thought witness Knox was in the office when he left it there. Witness Knox testified that he was in the office when Teachout brought the wire in and assisted in making measurements from the transformer pole to the telephone wires, and stated that the distance was about the same as the length of the short wire brought in by Teachout, and, while he would not be positive, said that Exhibit 4 looked like the end of the small wire brought in by Teachout. Witness Jenkins, who was in the employ of the village in the electric light business, testified with reference to this exhibit as follows:

“Yes, sir; I saw the wire from which this (Exhibit 4) was taken from; cut it off myself from the piece; couldn’t tell just exactly how long a piece it was; should judge 7 or 8 feet long. That piece of wire was brought to the office by Teachout and Knox and it was cut off by me; it was then in the same condition which it is now. I have measured the distance from pole No. 1 to pole No. 2. The distance between the poles, center of the butt to each pole, is 24 feet and 6 inches, I think; made figures of that last night. Pole No. 1 from the ground to the top is 25 feet and 5 inches; from the top of the pole to the crossarm is 8 inches and a half.”

On cross-examination he admitted he was not in the office at the time Teachout came in with the wire but relied upon what was told him. It appears that it was his duty to look after the wires, and it does not appear that there were any other wires in the office that were connected with the transaction. Counsel for the village admitted that Exhibit 4 was the end of the wire which hung from the transformer pole. This chain of evidence and circumstances were strong enough to warrant the jury in believing that Exhibit 4 was, what it was claimed to be, a part of the broken wire which caused the death of plaintiff’s decedent.

Objection is also made to the reception of Exhibit 14, which was a piece of wire taken from the companion wire of the one that was broken. This wire remained in position at the time of and after the injury in question and continued to remain in use until near the close of the trial, when it was removed, under the direction of the village authorities, brought to court, and received in evidence. Its purpose was to show that there were also marks or rough places on the upper part of the insulation of this wire at the point where the telephone wires crossed. The evidence shows conclusively that the wire was the identical wire that ran parallel with the wire that burned off on the day of the accident, and that it had been kept in such a condition that injury had not been done to it since that time, until it was taken out and offered in evidence. Under these circumstances it was not error to allow the jury to consider it with all the other evidence in the case.

Our attention is called by the plaintiff to the fact that the defendants in this case sued out a joint writ of error but filed no joint errors, and that the Citizens' Telephone Company complains of error committed by its codefendant. It is urged that these assignments of error relied upon by the telephone company should not be considered on this appeal. They relate to the admission of evidence; and, as we find that no error was committed, it is unnecessary to pass on that question,

The remaining assignments of error have been considered. The charge of the court was comprehensive and clear and the case was fairly submitted to the jury.

.. Complaint is made of the admission of the mortality tables in evidence and the instruction of the court with reference to damages. Considering the amount of the judgment, $1,200, if technical errors were committed we are not prepared to say that they were sufficiently prejudicial to warrant a reversal of the case.

Judgment is affirmed.

Steere, C. J., ancl Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    APPENZELLER v. APPENZELLER.
    Fraud — Deeds—Execution.
    Evidence held, to be insufficient to sustain tlie burden of proof resting on complainant, wbo claimed that her son and his attorney had procured the execution of a deed of her property by fraud.
    Appeal from Saginaw; Gage, J.
    Submitted April 21, 1913.
    (Docket No. 97.)
    Decided October 1, 1913.
    Bill by Leah Appenzeller against William H. Appenzeller and wife for the cancellation of certain deeds. From a decree for defendants, complainant appeals.
    Affirmed.

      Riley L. Crane, for complainant.

      Snow & Snow, for defendants. '
   Kuhn, J.

In this proceeding it is sought to set aside a deed given by complainant to the defendant William H. Appenzeller and his two sisters. The father, Frederick Appenzeller, died in Saginaw on September 29, 1909. He had been in the mercantile business in different places, and the property covered by the deed in question, of the value of about $50,000, was the result of the earnings and savings of himself and his ..wife. The title of the property had been taken in the wife’s name for reasons not disclosed by the record. The defendant William H. Appenzeller, at the time of the death of his father, was residing in the city of Seattle, Wash., where he was engaged in the shoe business. The father being stricken with paralysis, the son was summoned by telegram and arrived in. Saginaw about a month before his father’s death and remained until about a week after and then returned to Seattle to dispose and arrange his property matters so that he could come back to Saginaw to remain permanently. It is his claim that after his father’s death he talked over the property matters with his mother, and that she suggested that he look' after the collection of the rents, and that she was desirous of placing the property in her children’s names. He thereupon consulted an attorney, who advised him that a deed might be drawn to the three children reserving a life estate to the mother. He claims to have informed his mother of this, but she objected to the attorney who had been suggested and proposed that he see Mr. Frank Emerick, an attorney who had done some business for the father during his lifetime, and request him to draw the deed. This was done and a deed was prepared, and on the evening of October 11, 1909, by arrangement, Mr. Emeriek took the deed to the home of complainant and in the presence of her daughter Daisy, her son, the defendant William, and the attorney, Mr. Emeriek, she executed a deed by which she deeded practically all the property to the three children, reserving to herself a life estate “for and during her natural life, together with the possession and control thereof and all the rents, issues, and. profits thereof.”

The testimony of the complainant and her daughter Daisy is in sharp conflict with the testimony of the son and Mr. Emeriek as to what occurred at the house. It is the claim of complainant that as her other daughter, Lulu, was very ill at Lake Geneva, Wis., they were making preparations to leave Saginaw on the morning of the 12th of October to visit that daughter, and they did leave on that day and were accompanied by her son, who went on to Seattle after remaining a day or two at Lake Geneva. She claims that the first she heard about Mr. Emeriek coming to the house was when her son on the evening before leaving at about 7 o’clock, came to the kitchen where she and her daughter were washing dishes and said, “Hurry up, Mr. Emeriek is coming up this evening to see about collecting the rents while we are away;” that when Mr. Emeriek arrived there was no talk of a deed or transfer of property; and the typewritten deed was folded and only party opened, and that it was not read to her, and that she supposed that she was signing a paper with reference to the rents only. She testified:

“He came in at 8 o’clock and he had a paper in his pocket, and he was pretty much in a hurry, and he said, ‘Mrs. Appenzeller, I want you to put your name down on this paper; sign it.’ He read a little but not very much of it. He said, ‘Each child should share and share alike.’ So I thought it was the rents, nothing but a lease; and that was all he read; and he says, ‘Now it isn’t necessary to read anything else.’ He said: ‘It is all right, Mrs. Appenzeller. Put your name right down here.’ He never asked me to read it at all, and I didn’t think there was anything else only— * * *
“Q. Then your understanding of this paper was that he was to collect the rents on your husband’s estate and give them equally'to the three children?
“A. No, my share would come out of that.
“Q. Well, I thought you said Mr. Emerick told you it was to deed it to your three children, share and share alike?
“A. Share and share alike, he fixed this.
“Q. I say, that is what you say you have understood that the rents were to go to the children, share and share alike? You thought he meant rent from the estate of your husband, is that right?
“A. Rents from the estate.
“Q. Well, now, you said that he read a portion of it to you?
“A. Yes, sir. He told me share and share alike. When he said share and share alike, I thought he meant the children, of course. I have done considerable business during my lifetime and understand it. I have seen deeds of property and signed many of them. I have sold property of my own and signed deeds for it.”

In this she was corroborated by her daughter Daisy. The defendant testified to an entirely different version of the transaction, and said that his mother fully understood the arrangement for deeding the property before Mr. Emerick arrived, and the deed was read to her, and that an hour was spent in discussing and explaining its details.

Mr. Emerick testified as follows:

“Q. How did you happen to draw that deed, Mr. Emerick?
“A. Mr. Wm. Appenzeller came to the office and informed me that there had been some family conferences in regard to the disposition of the property or arrangement of the property; that he consulted Mr. W. E. Crane, and his mother objected to him and desired to have her own attorney, which was myself, to prepare this deed and look after the business; and he said to me, after conferring together, ‘She desired to have the conveyance in such shape as to retain the property during her life, and after her death to be divided among the children/ I drew the deed in accordance with those instructions and suggestions.
“Q. Will you state to the court what took place at the time this deed was signed by Mrs. Appenzeller?
“A. Well, after preparing the deed, I took it to my residence on Michigan avenue about a couple of blocks, I think, from where they- resided, and then in thh evening I walked down "there, and when I came to the house the three were In the sitting room. We all sat about the táble in the sitting room; and I remember I introduced the subject and took the deed from my pocket, and there wás some conversation before the pen and ink was procured, and I read the paper over carefully and I explained it repeatedly to Mrs. Appenzeller, in the presence of her daughter and her son, that the paper was drawn so as to carefully protect her life estate and her property interests in the property during her life, and all the income, and so forth, and then at her death to be equally divided among the three children. I was very careful about the matter, I remember, and finally after reading this paper, and after the discussion about it and the explanation of it, it was signed and I took the acknowledgment of Mrs. Appenzeller and signed it also as a witness. The deed was signed upon the table in the sitting room and I put it in my pocket. Then there was quite a little talk about the matters pertaining to the administration of the estate; and the young lady went out somewhere from the room and brought back a box containing papers, and I stepped around on the other side of the table, and when I saw what they were I examined some of the papers, spoke about the probate of the will or whether there was or not a will. Then I think I stated to the son, who apparently had charge of matters, to fix a time he could bring all these papers to my office and I would go through them carefully and see what there was to it. It was arranged that I' should take charge of the legal part of the administration of the estate, and there was some other talk about the work here. The paper was spread out at large upon the table, read over, and signed by her. From the fact it was a woman, and it has been my invariable custom to be careful about that, I will say that was my purpose.
“Q-. At that time, was there anything said about collecting rents?
“A. Nothing about that subject that I can recollect at all. Nothing said about my collecting rents. There was some talk about the estate matters and of probably finding a will.”

On cross-examination:

“I have been a lawyer for 30 years. Did some business for Mr. Appenzeller, deceased. He was in the habit of coming to my office at times in consultation in regard to his various properties; sometimes had trouble with his tenants; and I prepared some leases for him. One piece of property he had on Genesee avenue of which I had an abstract made and examined the title. He was in the habit of coming to my office quite frequently. I knew Mrs. Appenzeller quite well. I once bought a piece of property from them and she came to my office some two years ago. A short time after his death, I think before the parties went West, I think some of the papers pertaining to the estate were left at my office, or brought there, before they went away. I was employed as attorney for the estate within ten days after his death and before they went West. I talked with Mrs. Appenzeller about acting for the estate prior to their going West. I think it was the same day, that evening after the execution of the deed. We examined the papers that night. We were looking for the will that night among those old papers. The first business I had done for the son here was in this case appearing as his solicitor. The son gave me the information. I didn’t see any one else about the deed prior to going to the house.
“Q. And you hadn’t done any business for her?
“A. Well, I don’t know as I did as her attorney. I did for her husband. For several years before his death and during his sickness and after his death, I was attorney for the family. If she had occasion to consult any one she consulted me following her husband’s sickness and death. The description of the property in the deed was from papers that the son brought to my office. The deed included all her property. It was the intention to include everything. I went to her house about 7:30. She, her daughter and son, and myself were the only persons there.
“Q. You say you read that deed over to her?
“A. Surely, I read it all. I read some portions more than once and the entire paper carefully once.
“Q. So the daughter and widow are entirely mistaken when they say that paper was not read?
“A. Entirely mistaken. I am absolutely sure. I wouldn’t have a woman sign a paper without carefully reading it.
“Q. What did she say to you about it?
“A. I couldn’t assume to give the exact language, but I know I went in and sat down and took the deed from my pocket. Mrs. Appenzeller sat near me, the daughter across the table, and the son near by somewhere; and after some ordinary conversation I produced this deed and laid it upon the table, and I called attention to it and said it was a deed I had drawn according to the information I had and what I thought she wanted, and I read the paper. Then I carefully explained the legal effect and nature of the instrument, particularly as to her retention of the life estate during her life, and the right to the reception by her of all rents and incomes during her life, and after her death to go to the three children.
“Q. You don’t remember anything that she said about it?
“A. Well, I wouldn’t attempt to quote her exact language. I know she made the response there when I spoke to her and that she was satisfied.
“Q. Wouldn’t it strike you as a little peculiar that a woman deeding away all the property she owned, that she didn’t say something about it?
“A. Why, she did say something. She talked; I couldn’t repeat the exact words she used. It seemed to be perfectly understood and she signed it readily. I saw nothing peculiar in the transaction in her deeding the property to her own children and reserving a life estate. I thought it was a very equitable adjustment of her property rights. I couldn’t think of anything possibly better for her. I had the paper all ready for her signature when I went there.
“Q. Was there anything said there about your collecting rents for her or for,the estate?
“A. I can’t recall a single word on that subject. I think the rent matter came up after she came back. The first I recall about the rent matter was trouble with a tenant in one of the stores. I never collected rents except where there was trouble. I wouldn’t bother with it. She collected her own rents.”

It also appears that about a year after the execution of this deed the complainant executed a will drawn by Mr. Emerick, by which she gave to her two daughters all such property as she still possessed, and especially referred to the deed in the following language:

“My son, William H. Appenzeller has already re7 ceived by virtue of a deed executed by me and recorded in the register’s office of Saginaw county, Michiganian undivided one-third of my real estate described in said deed and such interest taken by him under said deed shall be in full of his distributive share and of all share of my estate.”

With reference to the reason for drawing this will, there is again a decided conflict in the evidence. The complainant alleges that the will was drawn at the suggestion of Mr. Emerick and testified:

“Q. You knew what this will contained, didn’t you? There was no mistake about that in your mind?
“A. Well, wasn’t so much my knowledge. I never made a will before.
“Q. Well, you understood what this contained?
“A. Yes, sir.
“Q. This was read to you?
“A. Yes, the will was read to me. I knew what was in it.
“Q. So you knew when this clause, ‘My'son, William Appenzeller has already received by virtue of a deed, executed by me, and recorded in the register of deed’s office, Saginaw county, Michigan, an undivided one-third of my real estate, described in said deed, and such interest taken by him in such deed, shall be in full of his distributive share, and of all share in my estate’ — when that was read to you, you knew you had deeded to him some property, didn’t you?
“A. No, sir; I didn’t.
“Q. You didn’t know that? What-did you think that meant, those words in clause 3 of the will?
“A. I didn’t know what it meant.
“Q. Why, Mrs. Appenzeller, the reason that you divided this property, all you might have, which consisted of real and personal property, jewelry, etc., when you devised that to your two daughters you knew that you had disposed of the rest of your property to your three children, didn’t you, equally, share and share alike, and you said so right in that will?
“A. Mr. Emerick proposed that himself.
“Q. Do you mean to tell this court that when you signed that will, recognizing that deed, you didn’t know then that you had executed the deed to your three children?
“A. No, I didn’t know that I deeded it at all.
“Q. Well, what did you think that clause 3 meant?
“A. Didn’t know what it meant.
“Q. What did you think it meant then?
“A. I don’t know.
“Q. Didn’t you think about it?
“A. I don’t know.”

Complainant further claims that she made frequent inquiries of Mr. Emerick concerning the instrument executed at her home but that he refused to give her the information she wanted and that it was not until her brother, who did not reside in Saginaw, came that she discovered that the instrument executed on October 11, 1909, was in fact a deed, and immediately thereafter this proceeding was instituted. It further appears that Mr. Emerick never attempted to collect any rents except in one or two instances when he collected some small sums on account of difficulties which she had with her tenants, and this was after her return from Lake Geneva, where it appears she only expected to remain two or three weeks. It does not appear that Mr. Emerick had ever acted as attorney for William Appenzeller before the drawing of the deed, and there is nothing in the record to indicate that William Appenzeller knew anything about the execution of the will until this suit was begun and Mr. Emerick informed him about it. To sustain complainant’s contention in this case, it would be necessary to find that Mr. Emerick was guilty of most reprehensible conduct as an attorney and that he entered into a conspiracy with the defendant William Appenzeller deliberately to deceive the' complainant as to the character of the instrument executed on October 11th and, to carry out the fraud, had her execute the will and deliberately deceived her as to its contents. The proofs are not sufficient to warrant such a finding. It appears that he has been a practicing attorney for 30 years, had been prosecuting attorney of his county, and at the time of the hearing of the case was vice president of the board of education of the city of Saginaw.

The trial judge, who saw and heard the witnesses on the stand, made the following findings as to the credibility of the witnesses:

“From the entire evidence I cannot say that Mr. Emerick and the defendant are not quite as worthy of credence in this matter as the mother and the daughter. If it occurred as the mother and daughter claim it did, then the defendant and Mr. Emerick were parties to a conspiracy to procure this deed from the complainant by fraud and deceit. To establish a case of fraud the proofs must be clear and convincing as our court has said many times. Certainly no one who heard this evidence could say that any fraud or deceit was established by such proof.”

A careful reading of this record convinces us that the proofs were wholly inadequate to make out the fraud relied upon, and the chancellor properly dismissed the bill.

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

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


author: McAlvay, J.

text:
    STEWART v. TERWILLIGER.
    1. Set-Off and Counterclaim — Partnership—Joint Liability.
    The liability of partners on a firm obligation is joint, not several, and in an action by one of the partners, the defendant may not set off against plaintiff’s demand a debt due him individually from the copartners.
    2. Same — Deeds—Covenants.
    Covenants of title in a deed executed by copartners to a third person, and not referring to any partnership relation, are joint, not several.
    Error to Wayne; Mandell, J.
    Submitted April 22, 1913.
    (Docket No. 108.)
    Decided October 1, 1913.
    Assumpsit in justice’s court by S. Wightman Stewart against Francis Terwilliger for broker’s commissions. Plaintiff appealed to the circuit court from- a judgment for defendant. Judgment for defendant. Plaintiff brings error.
    Reversed and judgment for plaintiff entered.

      S. W. Stewart (Choate, Robertson & Lehmann, of counsel), for appellant.

      Lehman, Riggs & Lehman (George M. Lehman, of ■counsel), for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant in justice’s court in the city of Detroit in assumpsit to recover as assignee for commissions claimed on a sale of real estate. This suit resulted in a judgment against plaintiff. The case was appealed by plaintiff to the circuit court for the county of Wayne, and a jury, under the charge of the court, rendered a verdict of no cause of action, upon which a judgment was entered in favor of defendant.

The facts in the case are that Gordon F. Bennett and Jesse J. Gee were partners in the real estate business, in which defendant was at one time interested, whether as a partner or having loaned money to them to use in the business is in dispute; that Bennett & Gee, in settlement with defendant, made a transfer to him of certain lots which they owned as partners by full warranty deeds of title in fee, except as to certain mortgages assumed by defendant; that it later appeared that there were liens and taxes against the property to the amount of $275, which defendant was obliged to pay in order to clear this title, and which Bennett & Gee, or either of them, never repaid. Later Bennett engaged in the real estate business alone and obtained a purchaser for defendant for part of this same property, which defendant sold to Bennett’s customer, and for which service Bennett claimed commissions, which defendant refused to pay because he claimed the partners owed him for breach of contract. Later Bennett assigned his claim for commissions to the plaintiff, and this suit was brought to recover such commissions.

Defendant pleaded the general issue in justice’s court, with notice of set-off of the claim against Bennett & Gee for damages sustained by reason of breach of covenant. Upon the trial proof of such damages was admitted over the objection of plaintiff that, the covenants in the deeds being joint obligations of Bennett & Gee, the same could not be set off against the claim of plaintiff’s assignor for commissions earned on the transaction which occurred after the partnership of Bennett & Gee was dissolved. Error is assigned in this court upon the admission of such evidence. There is no serious dispute as to the facts in the case. In the briefs of both parties it is stated that the sole question to be considered is a legal one, and that is whether, under the facts above stated, this set-off should have been allowed as a matter of law.

The exact question has not been before pássed upon by this court. Two separate propositions are involved in the determination of this question: First, whether the liability of partners upon firm contracts is joint or joint and several; and, second, whether the covenant in the deed in question was a joint and several covenant.

It appears to be recognized that at the common law, and in all States where the matter is not controlled by statute, the liability of partners is joint and not several, and therefore that a partnership debt cannot be used as a set-off against the claim of a partner individually. Parsons on Partnership (4th Ed.), § 262, and cases cited. ■

In Mason v. Eldred, 6 Wall. (U. S.) 231, Mr. Justice Field, among other things, said:

“But in copartnerships there is no such several liability. * * * Copartnerships are formed for joint purposes. The members undertake joint enterprises, they assume joint risks, and they incur in all cases joint liabilities. In all copartnership transactions this common risk and liability exist. Therefore it is that in suits upon these transactions all the copartners must be brought in, except when there is some ground of personal release from liability, as infancy or a discharge in bankruptcy; and if not brought in, the omission may be pleaded in abatement.”

The contention of defendant is that this was a partnership agreement and therefore a joint and several liability, which could be set off in any suit brought by one of the partners or his assignee against a person holding a claim against the partnership, and the court held that the covenant in this deed, upon which defendant relied, was a joint and several obligation. The deed was made and executed by Bennett, plaintiff’s assignor, and his partner, Gee, together with their wives, in their individual names, without any reference to partnership relations. They covenanted as follows:

“Parties of the first part, for themselves, their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seised of the above granted premises in fee simple; that they are free from all incumbrances whatever,” etc.

This covenant is in all respects a joint covenant and the liability under it a joint liability. If defendant had brought suit against plaintiff’s assignor upon a breach of this covenant, he could have pleaded the nonjoinder of his cograntor in abatement, and consequently the plaintiff could not have set off the individual claim for commission for which this suit was brought. We are cited to cases claimed by defendant to hold to the contrary, but they are distinguishable.

In the covenant under consideration there are no words of description of the parties or any evidence of intent that the covenants were several.

Reliance is placed by defendant on the case of Redding v. Lamb, 81 Mich. 318 (45 N. W. 997), an examination of which clearly shows the .distinction between that case and the instant case. In that case the parties described themselves and their different interests as “the widow and heirs of Benjamin Wilson, deceased,” and individually entered into the covenant of warranty, and this court so construed the instrument.

It follows that upon neither proposition can the contention of the defendant be sustained, and that it was error to allow this joint claim against defendant’s grantors as a set-off against plaintiff’s demand. Defendant’s remedy is against his grantors jointly. The court was in error in allowing such set-off.

The judgment of the circuit court'is reversed; and, it appearing from the uncontradieted testimony in the case that the services upon which this suit was brought were rendered and were of the value claimed by plaintiff, a judgment for $110, the amount thereof, together with interest at 5 per cent, from July 13, 1910, the date of the commencement of this suit, will be entered in this court in favor of plaintiff.

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


author: Stone, J.

text:
    ENSIGN v. FOGG.
    ' l. Bills and Notes — Anomalous Indorser — Negotiable Instruments Act — Alteration.
    The indorsement of a third person, appearing on the back of a note underneath the signature of the payee, is conclusively presumed to be that of a subsequent indorser, and not that of a joint maker or surety, and the contention that such indorsement of an irresponsible person in no way interested in the note, without the knowledge or consent of the maker or holder, is an alteration, cannot be sustained. Act No. 265, Pub. Acts 1905, §§ 50, 65, 69, 70, 126, 127 (2 How. Stat. [2d Ed.] § 2721 et seq.).

    2. Same — Motions—Striking Out ‘Indorsement.
    Pursuant to the provisions of section 50 of the negotiable instruments law, the request of plaintiff’s counsel for
    • leave to strike out such indorsement, made at the trial, might properly have been granted.
    3. Same — Pleading—Justices of the Peace — Denial Under Oath —Execution of Note.
    In order to have the benefit of the defense of alteration under 1 Comp. Laws, §§ 767, 826 (5 How. Stat. [2d Ed.] §§12220, 12273), defendant must deny under oath the execution of the instrument at the time of pleading..
    4. Same — Alteration—Holder in Due Course.
    In the absence of evidence that plaintiff made any change in the terms of the instrument, which defendant claimed showed an alteration, as a bona fide holder, the plaintiff was entitled to recover according to its original tenor. Act No. 265, § 126, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2797).
    5. Same — Evidence—Presumption.
    Where there is nothing suspicious upon the face of an instrument, beyond the fact that an erasure is manifest, the presumption is that any alteration appearing on the face thereof was made before the execution of the instrument.
    Error to Ingham; Collingwood, J.
    Submitted June 3, 1913.
    (Docket No. 15.)
    Decided October 1, 1913.
    Assumpsit in justice’s court by Charles B. Ensign against Frank M. Fogg on a promissory note.- From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      L. B. Gardner, for appellant.

      McArthur & Dunnebacke, for appellee.
   Stone, J.

This action originated in justice's court, and was brought upon a promissory note signed by the defendant, which note is in the words and figures following:

May
“Leslie, Mich., April 14, 1909.
“One year after date I promise to pay to the order of W. S. Hunter, Jr. ($220.00), two hundred twenty dollars, at the office of People’s Bank of Leslie, Mich., value received, with interest at five per cent, per annum from maturity until paid, and attorney’s fees, if not paid at maturity.
“Address, Leslie Mich.
“R. R.- No. 4.
“Due 5 — 14—-10.
“F. M. Fogg.”
On the back of the note appear the indorsements, “W. S. Hunter, Jr. Lula G. Allen.”

It appears that the suit in justice’s court was begun by summons issued on December 1, 1910, returnable December 10, 1910. The summons was returned personally served on December 2, 1910. Upon the return day of the summons the suit was by consent of the parties adjourned to December 17, 1910, and from the last-named day it' was further adjourned by consent and stipulation of the- parties from time to time until March 4, 1911, at which date the following entry was made in the docket of the justice:

“In the above cause defendant, under his .plea of the general issue, orally gives notice that the note sued upon was obtained by fraud, and for want of consideration, also of recoupment of damages, and that plaintiff is and was not a bona fide purchaser of said note.”

By stipulation the suit was further adjourned from time to time to July 10, 1911, when the parties appeared for trial, and the following entry was made -in the docket:

“Plaintiff moved to amend declaration, and declared orally against the said defendant, under the common counts in assumpsit, and more especially upon a certain promissory note now on file in this court. Said amendment to take eíféct nunc pro time as of March 4, 1911.”

The case was tried in the circuit court upon the pleadings as they were made in justice’s court.

It is undisputed that the note was given upon the purchase by defendant from W. S. Hunter, Jr., of a gas lighting plant, which was installed in defendant’s country home in the spring of 1909.

The plaintiff was the only witness sworn upon the trial in the circuit court. He testified in substance that just prior to March 15, 1910, he purchased the note in question of W. S. Hunter, Sr., to whom the note had been transferred by W. S. Hunter, Jr., the payee; that he purchased the note and paid for it in the regular course of his business as a discount banker; that Lula G. Allen was in plaintiff’s office perhaps with W. S. Hunter, Sr., in connection with the transfer of the note; that she put her name upon the back of the note, and he was inclined to think that she signed it in witness’ office, under the general rule that he had of all paper that was brought in by a person — if a man or woman offered paper, he had the indorsement put upon it when he purchased it— that, if Lula G. Allen brought notes in the office for Mr. Hunter, she would have been required to sign on the back of the notes; that Lula G. Allen had been and perhaps then was the stenographer of W. S. Hunter, Sr., and witness understood that she was in some way or other associated with W. S. Hunter, Sr., and the plaintiff further testified on cross-examination as follows:

“There was a bunch of notes brought in at the same time with the Fogg note. I don’t recall at this time how many there were. They were against various people; but I do not recall who they were. I cannot recall any person’s name for certainty. I don’t recall how many notes there were. There were several.
“Q. Did. Lula G. Allen sign all those notes, indorsing them?
“A. I think very probably her signature was on them; but it might not have been. I think she did sign other notes, other than the one in question.
“Q. Have you any recollection that she did?
“A. Why, yes; she did. I could not undertake to tell how many notes. I cannot recall whether they were all signed or not, nor can I recall how many she did sign. I think probably she signed them all.
“Q. Why did you have her sign these notes?
“A. In compliance with the custom of my office; yes, sir.
“Q. Why did you want Lula G. Allen’s name upon these notes ?
“A. Because I thought they were brought in by her, and I always have a party that brings in a note, and makes the transaction, put their name on the note as a way of identification, because they guarantee that the notes come to them regularly, and also enables me to trace back how I got the note, who I got the note of, and who they represented, and whose office they were from. W. S. Hunter, Sr., should have signed it. It was an oversight that he did not.
“Q. If it had not been an oversight, you would have had W. S. Hunter, Sr., sign the note?
“A. He was not in at the time. He was in after-wards; but it was an oversight my not having him sign it.
“Q. Did Lula G. Allen sign that note there at the office before Hunter came in?
“A. I think very probably she did before he came in. My recollection is not quite clear on that subject; but I think she did.”

The note being in evidence, and the plaintiff having rested his case, the defendant moved the court to direct a verdict against the plaintiff for the following reasons:

(1) "That there is a material alteration made in said note after the same was executed and delivered by Frank M. Fogg, the maker, and without his knowledge and consent, and with the knowledge and consent of C. B. Ensign, the plaintiff, by adding to said note the name of Lula G. Allen upon the back thereof, and therefore such material change vitiates the note.”
(2) "That the indorsement of the name of Lula G. Allen upon said note after the same was executed and delivered by Frank M. Fogg, the maker, and without his knowledge and consent, and with the knowledge and consent of C. B. Ensign, the plaintiff, is a material alteration, and therefore vitiates the note.”
(4) “That there is a material alteration in that-note, in crossing out the following words and figures, to wit, ‘April,’ and the erasure of a figure, not apparent as to what particular figure or figures, and in putting above it the following words and figures, to wit, ‘May 14;’ the change purporting to have been made after the execution and delivery of said note by Frank M. Fogg, the maker, thus changing the time of payment.”

The said motion was overruled by the court, and a verdict and judgment for the plaintiff were directed by the court.

The defendant has brought the case here for review, and his counsel states, in his brief, that two questions are raised by the assignments of error:

First. “Is the indorsement of a note, after the same has been negotiated by the payee, by an irresponsible person who is in no way interested in the note, as owner or otherwise, and without the knowledge or consent of the maker, and with the consent and solicitation of the holder, such an alteration as will defeat a recovery thereon?”
Second. “Is the changing of the date of the note from ‘April,’ and the day of the month named therein, to ‘May 14,’ without the knowledge or consent of the maker, such an alteration as will defeat a recovery thereon?”

We will consider these questions in the order in which they are presented.

First. Counsel for appellant first calls attention to sections 126 and 127 of Act No. 265, Public Acts of 1905 (2 How. Stat. [2d Ed.] § 2797), being an act relating to negotiable instruments. Section 126 is as follows:

“Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized, or assented to the alteration, and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder, in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.”

Section 127 reads as follows:

“Any alteration which changes: First, the date; second, the sum payable, either for principal or interest; third, the time or place of payment; fourth, the number or the relations of the parties; fifth, the medium of currency in which payment is to be made; or which adds a place of payment where no place of payment is specified, or any other change or addition, which alters the effect of the instrument in any respect, is a material alteration.”

As we understand the claim of appellant’s counsel, it is that under the fourth subdivision of section 127 Lula G. Allen’s indorsement changed the number and relations of the parties, and was a material alteration of the note. We are unable to agree with counsel in this claim. A careful reading of the negotiable instruments statute shows that it is expressly provided that promissory notes may be indorsed and negotiated without the consent of the maker. We think that the indorsement of this note by Lula G. Allen, after the indorsement of the payee of the note in blank, worked no change in the number or relations of the original parties to the note. She was a mere subsequent indorser.

As her indorsement was a blank indorsement, and appears upon the note below that of the payee, her liability thereon under sections 65, 69, and 70 of the act is conclusively presumed to be that of a subsequent indorser, and not that of a joint maker or surety. The entire act should be construed together and its provisions harmonized if possible. The plaintiff was the holder of this note. Section 50 of the act provides as follows:

“The holder' may at any time strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument.”

The indorsement of this note in blank by W. S. Hunter, Jr., the payee, made it negotiable by delivery. The indorsement subsequently by Lula G. Allen was not necessary to the title of the plaintiff. The record shows that plaintiff’s counsel asked leave of the court upon the trial to strike out the signature and indorsement of Lula G. Allen, pursuant to the provisions of section 50, and the court might well have granted the request.

It has been held that the intervening indorsements need not be stricken out before the trial, but may be after the plaintiff has finished his case. See Bunker on Negotiable Instruments, p. 95, citing Mayer v. Jadis, 1 Moody & R. 247. If the holder may at his will strike out such an indorsement without its affecting the liability of the maker, it cannot be held that the placing of such an indorsement upon a note is a material alteration thereof. We are of opinion that there is no merit in the contention of appellant upon this question.

Second. There are a number of reasons why the second question of appellant’s counsel cannot be answered in his favor.

(a) The state and condition of the pleadings. Is the question of a material alteration an issue in the case under the pleadings? We think not under our practice. The execution of the note declared on was not denied under oath. By section 767, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12220), it is provided that the pleadings in a suit before a justice of the peace may be either written or verbal, and that the execution of a written instrument, filed with the justice, shall not be denied, except under oath, as therein-after provided. Section 826, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12273), is as follows:

“When any*written instrument, purporting to be executed by one of the parties, is declared upon or set off, it may be used in evidence on the trial of the cause • against such party, without proving its execution, unless its execution be denied by oath at the time of declaring, or pleading, or giving notice of set off, if such instrument shall be produced and filed with the justice.”

It is the claim of appellant that the note was not produced and filed with the justice at the time of declaring. On the other hand, the plaintiff claims that the note was filed with the justice when the plaintiff declared on March 4, 1911, when the defendant pleaded the general issue and gave notice of the special defense, that the note was procured by fraud, etc., but that the justice neglected to note in his docket the substance of the declaration and the filing of the note sued upon, hence the entry in the docket of July 10, 1911, above set forth.

If defendant is correct in his position that there was no declaration until July 10th, we have the anomalous condition of a plea to a declaration, before the declaration was filed. If the declaration was not filed or made until July 10th, that was the proper time to produce and file the note under the statute, and the defendant should then have denied its execution under oath.

Under our practice, whenever it is claimed that the instrument declared upon has been altered or changed in any material part, so that the true tenor and effect thereof is not as pleaded or set forth, and the note has been produced and filed with the justice in accordance with the terms of the statute, the execution of the instrument must be denied on oath at the time of pleading, and such alteration is not confined to the signature only; but whenever it is claimed that the instrument declared upon and filed is not in substance the instrument executed by the party, its execution must be denied upon oath as indicated. Pegg v. Bidleman, 5 Mich. 26; People v. Johr, 22 Mich. 461; Polhemus v. Savings Bank, 27 Mich. 44; Jourden v. Boyce, 33 Mich. 302; Lobdell v. Merchants’ & Manufacturers’ Bank, 33 Mich. 408; Anderson v. Walter, 34 Mich. 113; Freeman v. Ellison, 37 Mich. 459; Ortmann v. Merchants’ Bank, 41 Mich. 482 (2 N. W. 677); Jenkinson v. Monroe Bros. & Co., 71 Mich. 630 (39 N. W. 854); Inglish v. Ayer, 92 Mich. 370 (52 N. W. 639); Union Central Life Ins. Co. v. Howell, 101 Mich. 332 (59 N. W. 599, and note); Ada Dairy Ass’n v. Mears, 123 Mich. 470 (82 N. W. 258); Naftzker v. Lantz, 137 Mich. 441 (100 N. W. 601); First Nat. Bank v. Carter, 138 Mich. 421 (101 N. W. 585); Charles H. Werner & Sons Co. v. Lewis, 155 Mich. 450 (119 N. W. 431).

(b) Another reason why defendant cannot maintain liis second claim is that there was no evidence that plaintiff made any alteration in the date of the note. There was no evidence that the plaintiff was not a holder, in due course, for value before maturity, and under the terms of section 126 of the negotiable instruments act, above quoted, it is provided as follows:

“But when an instrument has been materially altered and is in the hands of a holder, in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.”

According to the claim of defendant, by its original tenor the note bore date in April. Interest began to run at maturity, hence by the claimed originar tenor of the note plaintiff would be entitled to a larger judgment than he recovered for he recovered interest only from May 14, 1910.

(c) There was no evidence that the date of the note was altered after execution. The defendant relies upon a presumption merely. An inspection of the note furnishes us with no evidence that the noté was altered after it was signed. There is nothing suspicious in the- appearance of the note. It may have been as claimed by plaintiff, that as originally prepared it bore the word “April,” but when signed the change was made to “May 14” by an indelible pencil. The bottom of the note shows the figures in pencil “5 — 14—10,” indicating when due.

We think that the rule is now well established in this State that, where there is nothing suspicious upon the face of an instrument beyond the fact that an erasure is manifest, the presumption is that the alteration was made before, the instrument was executed. Munroe v. Eastman, 31 Mich. 283; Sirrine v. Briggs, 31 Mich. 443; Newland v. Baptist Church Society, 137 Mich. 335 (100 N. W. 612); Arnold v. Brechtel, 174 Mich. 147 (140 N. W. 610); Connery v. Connery, 175 Mich. 544 (141 N. W. 615).

So in any view of the case which we are able to take .on this record, we are of the opinion that the circuit court reached the correct conclusion in directing a verdict for the plaintiff, and the judgment of the circuit court is affirmed.

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


text:
    McNAIR v. PARR.
    1. Contracts — Public Policy — Trial—Cross-Examination—Physician and Patient.
    Since an agreement between defendant’s family physician and a surgeon called in for the purpose of an operation, that the surgeon, should divide his fees with the physician, is against public policy and void, in a suit for the expense of the operation, defendant was entitled to wide latitude in cross-examination of plaintiff, and was entitled to show a tacit understanding, as claimed, growing out of previous dealings in similar cases between the two practitioners.
    2. Physicians and Surgeons — Contracts—Assumpsit.
    In an action by a surgeon as plaintiff for services performed in certain operations on defendant and his daughter, the court should have given a request preferred by defendant, that the plaintiff could not recover for services of defendant’s family physician who assisted in the operations and who called plaintiff in to perform them, under an express arrangement or tacit understanding to divide the fees, to be charged by plaintiff; and a judgment that might, under the court’s charge, have included the value of such services, was erroneous, since the other medical advisor, who was not a witness or party to the case, could not be bound or estopped, and might bring a separate action for his services.
    Error to Kalamazoo; Knappen, J.
    Submitted June 10, 1913.
    (Docket No. 58.)
    Decided October 1, 1913.
    Assumpsit by Rush McNair against Fred Parr for services rendered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Edward J. Anderson, for appellant.

      Alfred J. Mills and Alfred S. Frost, for appellee.
   Stone, J.

This is an action of assumpsit to recover for professional services as physician and surgeon in operating upon the defendant for hernia, and upon his daughter for appendicitis. The declaration was on the common counts in assumpsit, and the plaintiff filed a bill of particulars for the operations and the professional visits afterwards, which the testimony showed were included in the charge for operations. For each operation and. the accompanying visits there was a charge of $200, and the total amount claimed in the suit was $400.

The plea was the general issue, and the notice thereunder claimed, among other things, that at the time the causes of action arose there existed between the plaintiff and one Cicero M. Stuck, a physician, who was then the defendant’s physician, in the matters claimed for in said declaration, an unlawful agreement and combination, by which the said plaintiff and the said Cicero M. Stuck were to divide the fee which, it is claimed, this defendant was to pay the plaintiff for the surgical operations and professional visits mentioned in plaintiff’s bill of particulars and declaration on file in the case, which combination was unlawful and void, as contrary to public policy, and in violation of the statutes and common law of this State.

Upon the trial the plaintiff testified that Dr. Stuck asked him to see the defendant, and went with him and introduced him to the defendant, and that Dr. Stuck assisted plaintiff in both operations, and on cross-examination he testified that he had operated a number of times on patients of Dr. Stuck covering a period of 15 years; that there was absolutely nothing said between Dr. Stuck and himself concerning the fees. He further testified as follows:

“I never had, as far as this case was concerned; there was nothing actually said about fees.
“Q. What do you mean?
“A. Mr. Parr and his daughter.
“Q. I mean in all these cases, if you had an understanding or talk with him what you were to charge him for operating on his patients?
“A. No, sir.
“Q. And did you hot fix the rate for appendicitis with him at $100?
“A. No, sir.
“Q. Is not that what you charged his patients?
“Mr. Mills: I object to what he charged his patients.
“The Court: Yes.
“Mr. Anderson: I want to show what it is worth.
“The Court: I do not think that tends to show it.
“Mr. Anderson: Also to show that there was an established rate between them.
“The Court: I do not think the question proper.
, “Mr. Anderson: An exception.
“Q. Isn’t it a fact, Doctor, that you divided your fees with Dr. Stuck on those former cases?
“Mr. Mills: Objected to as incompetent, irrelevant, and immaterial; it is not pleaded.
“The Court: Yes.
“Mr. Anderson: The purpose is to show that Dr. Stuck, our physician, has always acted as the agent of Dr. McNair, unbeknown to us, and has received a commission or a part of a fee.
“The Court: I do not think that makes any difference; that might be so. Dr. McNair would have a right to charge what his services were worth, no matter what he does with the proceeds.
“Mr. Anderson: We offer.it for the purpose of showing it was an unlawful understanding.
“The Court: I think-the objection should be sustained at that; it will be sustained.
“Mr. Anderson: Note an exception.
“Q. Is it not a fact that it was understood between you and Dr. Stuck that you were to divide your fees in this case at "issue, unbeknown to Mr. Parr?
“A. Dr. Stuck and I had absolutely not a word between us concerning Mr. Parr’s case or that of his daughter.
“Q. Was it not the tacit understanding between you and Dr. Stuck that you were to divide your fees?
“Mr. Mills: The same objection.
“The Court: That is calling for the conclusion of the witness; the best evidence would be some conversation on the subject. The objection should be sustained.
“Mr. Anderson: It is offered for the same purpose.
“The Court: Yes.
“Mr. Anderson: Note an exception.
“Q. Is it not a fact that the understanding between you and Dr. Stuck came about on account of your division of other cases?
“Mr. Mills: I object to it, and object to counsel inquiring along that line.
“Mr. Anderson: It is offered for the same purpose.
“The Court: The objection is sustained.
“Mr. Anderson: An exception to all of these rulings.
“Q. Did you intend to divide your fee which you received from Mr. Parr for his operation and his daughter’s with Dr. Stuck?
“Mr. Mills: Objected to fqr the same reason;
“Mr. Anderson: An exception.' We offer it for the purpose of showing it enhanced the doctor’s charges against Mr. Parr for these operations.
“The Court: I think you may ask this question, if Dr. McNair made the charge against either- of these people larger than his services would entitle him to because of any understanding he had with Dr. Stuck that he would divide with him? You can take an answer to that question.
“A. As I said before, there was no understanding between Dr. Stuck and myself, or any language justifying one that I entertained in my mind concerning it.
“Q. What was your former practice leading up to this time in regard to that?
“Mr. Mills: Objected to.
“The Court: I have ruled, Tthink; the question is whether he made his charge larger than he would ordinarily make it on occasions before that on account of Dr. Stuck, and he says, ‘No.’
“Mr. Anderson: I offer it for the same purpose; an exception.
“Q. Hasn’t it been your practice, generally, down to the time you operated on Mr. Parr, to divide your fees with the physician of the patients upon whom you operated?
“Mr. Mills: I object to that as incompetent, irrelevant, and immaterial, and a gratuitous insult to the witness.
“The Court: You can have an exception to that.’

The plaintiff further testified that Dr. Stuck had called his attention to the case as one which required an operation; that Dr. Stuck did not tell witness that he had any talk with defendant about plaintiff’s charges, or what his fees would be for operating; that there was absolutely nothing said concerning any fees; and that plaintiff had operated for hernia upon several of Dr. Stuck’s patients previous to the time he operated on the defendant. He did not know that Dr. Stuck had told defendant that plaintiff was to charge $40 to $60 for operating on him; that was not the regular fee he had been charging Dr. Stuck’s patients for operations. He did not recollect that he had charged any of them over $100; that he had not paid Dr. Stuck anything, and did not pay the sisters for the hospital bill; that he charged $200 outside of all those expenses for his personal work.

Near the close of the testimony the plaintiff was recalled, and in answer to questions by the court testified as follows:

“Q. Did your bill include Dr. Stuck’s bill, too, or was that just for your personal services?
“A. That was for the entire operation.
“Q. For what you did.
“A. That included my assistant’s fees, also.
“Q. Dr. Stuck?
“A. Yes, sir.
“Mr. Anderson: Q. You had an arrangement with Dr. Stuck, did you, to divide your fees with him?
“A. I had no arrangement in regard to the matter at all; I expect to pay Dr. Stuck for his assistance.
“Q. How much of that fee were you to give Dr. Stuck?
“A. That will be according to what he considers it worth.
“Q. Don’t you know that Fred Parr didn’t know anything about the arrangement between you and Dr. Stuck?
“A. Fred Parr knew that Dr. Stuck was going to assist me because he was the family physician.
“Q. Don’t you know that Fred Parr didn’t know anything about the arrangement between you and Dr. Stuck ?
“A. I don’t know whether he did or not.”

The defendant testified that he supposed he was to pay Dr. Stuck; that he never knew from Dr. Stuck or the plaintiff that he was to pay the plaintiff for Dr. Stuck’s services. , . .

The defendant requested the court to charge the jury that they could not allow plaintiff any money for the services of Dr. Stuck rendered at these operations. This request was refused. In its charge the court, in stating the plaintiff’s claim, said:

“He claims, also, that in the operative part of it, it was necessary and customary for him to have other assistance to enable him to skillfully, correctly, and properly perform the operation, and that he became indebted to them; that their work was a part of his work; that they acted as his assistants — for all of which he charges $400. * * * What were the plaintiff’s services fairly and reasonably worth, taking into consideration * * * the fact of the assistance that it was necessary for him to employ, if he did employ any, as you find from the testimony, and determine from all those facts what the fair compensation would be in these particular cases.”

The jury returned a verdict for the plaintiff for $393 damages, and a judgment accordingly was duly entered.

The defendant has brought the case here on writ of error, and there are 50 assignments of error. Many of them possess no merit.

The first six assignments of error are based upon the rulings of the court above set forth, and relate to the offer and attempt of the defendant to show by the plaintiff, on cross-examination, that the understanding between the plaintiff and Dr. Stuck, defendant’s family physician, was that the plaintiff was to split his fee with Dr. Stuck, which fact was unknown to defendant.

It is urged by appellant, and we think that the evidence warrants the claim, that it appears from the record that Dr. Stuck was the defendant’s family physician at the time these operations were performed, and had been employed in regard to the ailments for which the operations were performed to the knowledge of the plaintiff. The plaintiff, after testifying that his bill was only for his personal work, changed his position and testified, in answer to a question by the court, that his bill included Dr. Stuck’s bill. He also testified that he did not know whether defendant knew anything about the arrangement between him and Dr. Stuck in regard to their fees. The testimony of the defendant was uncontradicted, that he knew nothing of any arrangement between the plaintiff and .Dr. Stuck by which the latter was to get a part of'the plaintiff’s fee sued for in the case.

The cross-examination above set out was based upon the notice under the generál issue, and the defendant sought to show a tacit understanding bétween the plaintiff and Dr. Stuck, growing out of their former practice in other similar cases, in the matter of a division of fees. We think that the trial court applied too strict a rule in the cross-examination of the plaintiff to the prejudice of the defendant. Considerable latitude should be allowed in cross-examination when fraud is claimed.

It is the claim of the defendant that Dr. Stuck could not be the agent of both of the parties to the suit, while he was at the same time assisting in these operations as the family physician of the defendant; and that he could not draw pay from both parties, without the knowledge of all the facts by the defendant; and that any tacit understanding or agreement between the two doctors of any division of the plaintiff’s fees between them would be against public policy and void; and that defendant had a right to show that the plaintiff had charged an unreasonable sum for his services, in order to divide his fees with Dr. Stuck. That such a contract is against public policy the defendant cites the following cases: Flint, etc., R. Co. v. Dewey, 14 Mich. 478; Scribner v. Collar, 40 Mich. 375 (29 Am. Rep. 541); McNamara v. Gargett, 68 Mich. 454 (36 N. W. 218, 13 Am. St. Rep. 355); Wilbur v. Stoepel, 82 Mich. 344 (46 N. W. 724, 21 Am. St. Rep. 568); Cleveland v. Miller, 94 Mich. 97 (53 N. W. 961); Friar v. Smith, 120 Mich. 411 (79 N. W. 633, 46 L. R. A. 229); Hannan v. Prentis, 124 Mich. 417 (83 N. W. 102); Hogle v. Meyering, 161 Mich. 472 (126 N. W. 1063); 9 Cyc. pp. 481, 482; 31 Cyc. p. 1430.

We are of opinion that the above authorities support the claim of the defendant, and any agreement of plaintiff to split his fees with Dr. Stuck, without the knowledge of the defendant, would be void as against public policy.

By the fiftieth assignment of error it is claimed that the court erred in refusing to give the defendant’s request above referred to, which was to the effect that the plaintiff could not recover for the services rendered by Dr. Stuck. It is claimed by appellant not only that' it appeared by the undisputed testimony that Dr. Stuck was defendant’s family physician acting for him, and for whose services he is personally liable to Dr. Stuck, but also that the declaration and bill of particulars make no charge for such services, and that plaintiff is limited to his claim therein. It should be noted that Dr. Stuck was not sworn as a witness in this case, and he is not estopped from bringing a suit and recovering for his services rendered for the benefit of defendant in this matter under our holding in McCain v. Smith, 172 Mich. 1 (137 N. W. 616); the services having been accepted by the defendant.

If this judgment were to stand, the defendant may have to pay twice for the services of Dr. Stuck. That they are included in this judgment we have a right to presume under the charge of the court; but the value of such, services does not appear. Dr. Stuck is not a party to or bound by this judgment, and might maintain a suit against the defendant for his services. We think there was prejudicial error in that part of the charge referred to.

We have examined the other assignments of error, and in our opinion they are without merit.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

. Moore, McAlvay, Brooke, and Kuhn, JJ., concurred with Stone, J. Steere, C. J., and Ostrander and Bird, JJ., concurred in the result.


text:
    PARKINSON v. PARKINSON.
    1. Divorce — Separate Maintenance — Equity—Laches—Pleading.
    In a suit for separate maintenance, the question of laches may be raised by demurrer.
    2. Same — Husband and Wife.
    Mere lapse of time does not constitute laches unless it results in prejudice to the other party: and, therefore, delay of the wife in attempting to enforce her right to separate support, following litigation over a divorce and her failure to move for about ten years, does not of itself bar her suit under 3 Comp. Laws, § 8686 (4 How. Stat. [2d Ed.] §11534, et seq.), where complainant filed a bill for divorce soon after their separation and on her discontinuing the proceedings, defendant filed a second bill and obtained a decree which was reversed on appeal, and where complainant made criminal complaint against her husband for desertion and procured an order that defendant pay her $3 a week; the order haying been complied with.
    Appeal from Wayne; Hally, J.
    Submitted June 10, 1913.
    (Docket No. 50.)
    Decided October 1, 1913.
    Bill by Mary E. Parkinson against Charles A. Parkinson for separate maintenance. From an order overruling a demurrer to the bill of complaint defendant appeals. ■
    Affirmed.

      H. H. Markham, for complainant.

      Frank W. Atkinson (Moloney & Atkinson, of counsel), for defendant.
   Kuhn, J.

This is an appeal from an order overruling a demurrer to the petition of complainant filed under the provisions of section 8686, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11534), which confers upon chancery courts jurisdiction to compel husbands to support their wives under certain circumstances. The facts which led up to thé filing of this petition are substantially as follows: Complainant and the defendant were married September 16, 1877, and lived together as husband and wife until some time in 1900, when it is claimed that the defendant deserted the complainant. In May of 1900 the defendant filed a bill for divorce in the Wayne circuit court. An answer was filed and the cause was discontinued in open court in January, 1901. In December, 1901, the defendant filed a second bill for divorce. Complainant appeared and a decree was given the defendant in July, 1902, but the decree was reversed by this court in September, 1903. In September, 1905, complaint having been made in the police court of the city of Detroit of the failure of the defendant to support complainant, an order was made by that court requiring the defendant to pay complainant the sum of $3 per week, which has been done. Various grounds of demurrer are alleged, but the one argued before the court below and urged here is that the complainant has been guilty of laches in presenting her petition to the chancery court, and that therefore her petition should be dismissed.

In this connection, the first question discussed' is whether the question of laches can be raised by demurrer. That this can be done is well settled in this State, and it is only necessary to call attention to some of the authorities. McLean v. Barton, Har. Ch. (Mich.) 279; Campau v. Chene, 1 Mich. 400; Reynolds v. Green, 10 Mich. 355; Baent v. Kennicutt, 57 Mich. 268 (23 N. W. 808); Eames v. Manley, 121 Mich. 300 (80 N. W. 15); Judson v. Judson, 171 Mich. 185 (137 N. W. 103).

The court, in his opinion overruling the demurrer, expressed some doubt concerning the right of the defendant to demur or plead in this action, being in doubt whether the full chancery practice followed because the chancery court was given jurisdiction of the petition. As this question is not raised by complainant, it is not before us.

Conceding that the question of laches was properly raised by demurrer, which practice was recognized by this court in Meyerl v. Meyerl, 125 Mich. 607 (84 N. W. 1109), we are of the opinion that there is no merit in defendant’s claim that the petitioner should be barred because she has refrained from compelling defendant to adequately provide for her during the period which has elapsed between the time she claims the desertion took place and the time of the institution of these proceedings.

The mere lapse of time does not necessarily constitute laches. It must result in changing the position of the other party. Quinn v. Tully, 174 Mich. 30 (140 N. W. 492).

. In the case of Stone v. Stone, 162 Mich. 319 (127 N. W. 258), to which our attention is challenged, one of the parties remarried after a divorce had been obtained in another jurisdiction while a suit for divorce had been pending in this State. It was held that the failure to press this suit for 13 years, during 8 of which complainant knew of the other divorce, and that, relying thereon, defendant remarried, would prevent her from objecting to a'dismissal of her bill. The court said:

“We are of opinion that it would be inequitable and against sound public policy to permit her to do so.”

In Reed v. Reed, 52 Mich. 117 (17 N. W. 720, 50 Am. Rep. 247), where laches was held gross, a divorce had been -obtained in another jurisdiction and apparently was acquiesced in for 13 years, and the complainant remained apart from defendant against his will and in disregard of his repeated requests to return to him.

In the case of Judson v. Judson, supra, the demurrer was sustained on the ground of laches because the court found that no valid marriage existed and the parties were not husband and wife and never had been, in the State of Michigan.

In the instant case the petition charges desertion on the 24th day of July, 1900, and that defendant has refused to live with her from that time on, and that she was without fault and gave him no just cause for deserting her. Under our statute, the desertion must be continuous for a period of two years before she could file a bill for divorce on that ground. Can it be said to be less desertion if complainant concluded to show tolerance and wait for a longer period? The purpose of placing the period at two years was undoubtedly to prevent hasty action in alleging this ground for separation. Complainant has been patient and overlooked the shortcomings of defendant. Her forbearance should not now be rewarded by denying-her relief if she is entitled to it.

The order of the court - overruling the demurrer is affirmed.

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