author: BIRD, J.

text:
    EISENBACH v. EISENBACH.
    1. Divorce — Dismissal or Bill — Decree.
    Notwithstanding the filing of an answer in the nature of a cross-bill, in a suit for divorce, the complainant is entitled to dismiss the proceedings without prejudice at any time before interlocutory or final decree, unless some legal interest of defendant or the State precludes.
    2. Same — Interlocutory Orders and Decrees.
    Neither an order restraining defendant husband from incumbering or selling his property pending suit for divorce, nor an order for the payment of temporary alimony, so affects the merits of th'e controversy as to deprive complainant of her right to dismiss.
    3. Same.
    Complainant was entitled to dismiss her bill for divorce after the hearing and before a final decree had been entered, her counsel having asked for and obtained further time to secure additional testimony, and the time having expired without complainant taking any steps to introduce the additional proof.
    Appeal from Mecosta; Barton, J.
    Submitted June 3, 1913.
    (Docket No. 17.)
    Decided July 9, 1913.
    Bill by Amy Eisenbach against Martin Eisenbach for divorce. From a decree dismissing the bill, complainant appeals.
    Reversed.

      W. D. Fast, for complainant.

      Broomfield & Worcester, for defendant.
   BIRD, J.

On April 5, 1911, complainant filed her bill of complaint in the Mecosta circuit court charging defendant with extreme cruelty and praying for a decree of .divorce, alimony, and the custody of their four children. The defendant filed an answer in the nature of a cross-bill in which he denied complainant’s charges and charged her with extreme cruelty, with a prayer for relief. The case came on for hearing in February, 1912, and, after the testimony was closed and the case argued, complainant’s counsel asked for further time in which to secure the depositions of certain nonresident witnesses. The application was granted and complainant was given 73 days, or until the first day of the May term, in which to secure the same. On the adjourned day the matter came on for hearing again, at which time the complainant asked for 30 days’ further time in which to secure said deposition; for some reason which the record does not disclose, they had not been secured during the adjournment. This application was opposed by defendant and denied by the court. Thereupon complainant asked leave of the court to dismiss her bill without 'prejudice. The court refused to grant the request and rendered a decree therein, dismissing both bill and cross-bill. From this decree the complainant has appealed.

But one complaint is made by her on this appeal, and that is the refusal of the court to permit her to withdraw her bill of complaint without prejudice. It is argued in her behalf that she had a legal right to discontinue her case any time before final decree.

This precise question appears to have been considered. and determined in the case of Coon v. Coon, 163 Mich. 644 (129 N. W. 12). In that case Mr. Justice Blair reviewed the authorities at considerable length and as a result of it stated the rule to be as follows:

“We think the general rule to be deduced from the authorities is that in divorce proceedings the complaining party may dismiss his suit at any time before interlocutory or final decree, in the absence of any legal interest on the part of the defendant or of the State to the contrary.”

If we apply this rule to the case made by this record, it at once becomes apparent that complainant was entitled to the order which she asked.

It is, however, argued by the defendant that the two orders made by the chancellor, namely, one for an injunction and the other for temporary alimony, were interlocutory decrees, and that complainant was thereby deprived of her right to dismiss her case as a matter of course. The interlocutory decree, which deprives a complainant of the right to dismiss his bill as of course, must be such an order or decree as affects the merits of the controversy. 16 Cyc. p. 461. The order for an injunction was made to prevent defendant from selling or incumbering his property until the merits of the case could be heard, and the order for temporary alimony was made to furnish complainant with support and with means to get the merits of her case before the court. It cannot be said that these orders were a partial adjudication on the merits of the controversy. We are of the opinion that no interest of the defendant nor of the State will be injuriously affected by allowing complainant to dismiss her suit without prejudice.

The decree will be reversed, and such an order will be entered in the trial court. The complainant will recover her costs in this court.

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


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    DETROIT RIVER TRANSIT CO. v. ALDRICH.
    1. Pleading — Breach of Contract — Common Counts.
    Damages for breach of contract are not recoverable under the common counts.
    2. Same — Defenses-, Notice of — Recoupment—Plea.
    In giving special notice of defense for breach of an alleged contract, defendant must set up the terms of the contract as in a declaration: it is insufficient to refer to plaintiff’s declaration on the common counts by an averment that “plaintiff failed and neglected to perform the contract upon which this suit is brought,” etc., since no special contract is alleged in the declaration.
    3. Contracts — Breach—Demand.
    Where no opportunity was afforded by defendant to plaintiff to fulfill a contract to deliver gravel which defendant claimed plaintiff failed to perform, and defendant made no demand for performance, he was not entitled to recoup damages for an alleged breach, in an action for a balance remaining unpaid under the agreement.
    Nor could defendant recover a voluntary payment made to one of plaintiff’s employees as a gratuity or bonus for expediting the delivery of the gravel.
    4. Same — Voluntary Payment — Bonus.
    5. Evidence — Conclusions—Agreement.
    Where the issue between the parties related to the amount to be paid for a quantity of gravel, and plaintiff’s agent had testified at considerable length with reference to a conversation with defendant, in which the latter wanted plaintiff to furnish the gravel at 45 cents a yard, and plaintiff’s agent refused to db so, the witness after-wards stating that he remembered defendant agreed to pay 50 cents a yard, there was no error in refusing to strike out the testimony of the witness as a conclusion.
    6. Same — Value.
    Evidence of dealings with other parties by plaintiff, and the price paid by them at different times and under different conditions from those existing at the execution of the contract, was not erroneously excluded.

      Error to Wayne; Codd, J.
    Submitted June 5, 1913.
    (Docket No. 33.)
    Decided July 9, 1913.
    Assumpsit by the Detroit River Transit Company against Byron S. Aldrich for gravel sold and delivered to defendant. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James Swan, for appellant.

      Anderson & Wilcox, for appellee.
   Steere, C. J.

This is an action in assumpsit, in which plaintiff recovered against defendant, in the circuit court of Wayne county, on May 25, 1911, a judgment in the sum of $580.59, being a balance claimed due on a quantity of gravel sold and delivered to defendant. Plaintiff declared on the common counts in assumpsit, serving a bill of particulars, showing amounts, date of delivery, and price of a quantity of gravel furnished defendant, amounting to $5,984.60 and payments credited on same amounting to $5,429.08, leaving a balance in plaintiff’s favor of $555.52. Defendant pleaded the general issue with notice of set-off and recoupment, claiming a balance due him for overpayments on their general account of $179, and also a further sum of $1,177 damages for failure to deliver, according to contract, 2,354 yards of gravel, serving a bill of particulars which showed payments to plaintiff of $5,466.01 and credits for gravel delivered amounting to $5,286.40. The case was tried before a jury in the circuit court, resulting in a verdict in favor of plaintiff as stated, and defendant has removed the proceedings to this court under various assignments of error as to the admission and rejection of testimony and charge of the court. At the time of the dealings between these parties which resulted in this litigation, plaintiff, a Michigan corporation, was the owner of certain boats carrying gravel from the “Middle Grounds” at Port Huron, and in that connection was generally engaged in transporting and selling gravel, sand and coal in and around Detroit, its active man in control, and manager, being a Mr. Beecher. Defendant was a supply contractor, also engaged in the sand and gravel business in the city of Detroit. In the summer of 1909 some improvements were being made in connection with the Detroit waterworks, in which bids were to be received for a quantity of gravel. Beecher and defendant both contemplated bidding on the same, and for mutual protection, each against the other, and both against possible outside competitors, they' agreed that Beecher should put in a bid of 57 cents per yard and defendant Aldrich a bid of 55 cents per yard, and, if defendant got the contract, plaintiff was to deliver the gravel at the waterworks. Aldrich testified that after this amicable adjustment he became suspicious Beecher was going to “double-cross” him, and as a precaution against such perfidy put in a bid at 54 cents. When the bids were opened, it was found Beecher had bid 55 cents and Aldrich had gone him one cent better, or worse, as the case may be, and secured the contract. Negotiations were then entered into for further co-operation, which resulted in an oral agreement, the terms of which are in dispute. Prior to this, during the same summer, plaintiff had sold defendant several boat loads of gravel, to be delivered on the Detroit river at the Solvay dock at 45 cents per yard.

Defendant testified that he and Beecher discussed the amount required to fill the contract, the specifications calling for 11,000 yards with option for an additional 15 per cent., and it was agreed that plaintiff should deliver the same at 45 cents per yard; that the first load was delivered September 28th, and between that time and the 1st day of November only four loads had been delivered; that the waterworks people were “hounding” him for faster deliveries, and he complained to Beecher about it, who assured him there need be no worry, as it would all be put in on time. Following'this, owing to plaintiff’s' delay in delivery, defendant procured two boat loads of gravel from other parties, and when Beecher ascertained this he protested, requesting defendant not to get any more gravel from other parties, stating he had agreed to fill this contract, and guaranteed he would do so; but at the close of navigation there was a shortage on the contract of 2,354 yards. Defendant also testified that Beecher was ignorant of the management of boats of that character, and, owing to mismanagement and delays, defendant interviewed a man named Hickey who was a member of the crew of one of plaintiff’s boats, and promised him that, if the work was done as it should be, he would personally pay him $25 extra, as a result of which the boat was handled in a better manner and he paid Hickey as promised; that in talking with Beecher afterwards about the better work being done defendant told him the reason why, and said that he thought Beecher should reimburse him. To the question, “What did he say?” defendant answered: “I don’t remember just what he said. I can’t swear that he said that he would.”

Beecher testified that it was more difficult and expensive to deliver gravel at the waterworks than at the Solvay dock, and he positively refused to deliver any gravel to the waterworks at 45 cents a yard as defendant wished him to do, but asked 50 cents per yard; that he refused to undertake to deliver any definite amount even at that price, stating as the reason that he had other customers to supply, but, if defendant wished, he would deliver for defendant on his contract with the waterworks all that plaintiff was able to at 50 cents per yard, to which defendant finally agreed.

The record shows that plaintiff commenced delivering on September 29, 1909, and made the last delivery on December 7, 1909. At the end of each month duplicate invoices were rendered defendant, showing date and number of yards of gravel delivered, and price per yard. Defendant paid on the accounts from time to time, making no objection to the invoice price. He testified that during this time, and when making such payments, he did not notice the price per yard stated in the invoices, and had no knowledge that plaintiff was claiming more than the 45 cents per yard. Nine thousand four hundred and sixty-five yards of gravel were delivered at the waterworks by plaintiff. On December 7th Detroit river froze over, and navigation closed. Defendant paid $3,711.40 on this account prior to the close of navigation and $1,717.68 later. After the close of navigation, defendant received a notice from the board of water commissioners that 15 per cent, increase in the amount of gravel was desired; the contract giving the board that option. Defendant did not communicate this fact to plaintiff, or request him to make additional deliveries after receiving this notice.

The issues presented by the pleadings and testimony were: The price of -the gravel, whether 50 cents or 45 cents per yard; whether defendant had received 82 yards less gravel than plaintiff claimed in deliveries of September 6th and 23d, and had not received a claimed shipment of October 28th, amounting to 429 yards; some small items in regard to screening gravel, phone charges, etc., and the $25 paid to Hickey; also defendant’s claim of recoupment for breach of contract sued upon by reason of plaintiff’s failure to deliver an additional 2,354 yards.

On the trial the court took from consideration of the jury the $25 item as being a voluntary payment, or bonus, to an employee, made by defendant, for which plaintiff had in no way become responsible, and defendant’s claim of recoupment for failure to deliver additional gravel, instructing the jury as follows:

“There is also in this case a claim on the part of the defendant for damages by reason of the alleged breach of the contract on the theory that in September of that year the plaintiff in this case agreed to deliver all gravel needed at the waterworks dock. In that connection I charge you that there is no testimony in the case, even if there was such a contract, as to the breach thereof. There is no testimony in this case showing any demand made upon the plaintiff for the performance of the balance of that contract, and no opportunity given .to him to furnish whatever may have been necessary under said contract, if there were such a contract. Therefore, in view of the fact that there has been no demand and no opportunity given to the plaintiff to fulfill such a contract, if there was one, there can be no recovery for such and you will eliminate it from your consideration.”

Whether or not there was a contract to deliver any specific amount of gravel would be an issue of fact for the jury if properly presented by the pleadings, inasmuch as defendant testified that plaintiff agreed to furnish the full amount required by the waterworks contract, and Beecher positively denied it. Plaintiff does not declare expressly upon any contract. Its declaration is only on the common counts, and contains no special count for breach of a contract. Its bill of particulars is for a quantity of gravel sold and delivered at a certain price per yard. It could not recover damages for a breach of contract under the common counts. Hamilton v. Frothingham, 59 Mich. 253 (26 N. W. 486). Defendant’s plea is the general issue with notice, so far as this question is involved, that—

“Plaintiff neglected and failed to perform its part of the contract upon which this suit is brought by failure to deliver 2,354 yards of gravel as it was required to do to complete the contract made and entered into between the parties hereto, and that by reason of the failure to perform said contract in full the said defendant suffered a loss,” etc.

Recoupment is, in its nature, a cross-action for damages, an affirmative defense in relation to which the defendant is, in effect, plaintiff and may recover a money verdict in his favor if his claim exceeds plaintiff’s demand. Such claim must be properly pleaded, as in a declaration. Were the contract under which recoupment is claimed pleaded in plaintiff’s declaration, defendant might make it a part of his plea, or special notice, by apt reference, but here defendant refers to “the contract upon which this suit is brought” when none is pleaded by plaintiff, and fails to set out and properly describe in his notice the special contract upon which, he relies. Defendant is relying upon a contract which plaintiff not only does not plead, but in fact denies. Though it need not be as formal as a declaration, it. ought, nevertheless, to be equally specific. Bolt v. Friederick, 56 Mich. 20 (22 N. W. 187); Watkins v. Ford, 69 Mich. 357 (37 N. W. 300); Delaware & Hudson Canal Co. v. Roberts, 72 Mich. 49 (40 N. W. 53). A plea or notice which sets up a breach of contract in support of a claim of recoupment should be as distinct and unambiguous as if suing-directly for breach of contract.

Aside from this infirmity, defendant’s evidence does not sustain his claim of breach. He admitted that up to the close of navigation what gravel the water board wanted was delivered by plaintiff.

“Q. So, when the last load of gravel was delivered on December 7th, so far as you knew at the time that is all the gravel they wanted?”
“A. Yes; I think so, I think you are right about that.”

Later he received notice that an additional 15 per cent, was desired; He made no further demand on plaintiff for more gravel. His reason is that it would do no good, for plaintiff had sold its boats, and could not furnish it. Beecher testified plaintiff had boats in 1910, but, be that as it may, the court correctly stated “there was no demand and no opportunity given to the plaintiff to fulfill such contract, if there was one.” There was no error in the charge of the court upon that subject.

This view disposes of defendant’s third assignment of error, which relates to the rejection of certain testimony claimed to have bearing upon the measure of damages under his notice of recoupment.

The court was also correct in instructing the jury that there was no legal obligation resting upon plaintiff to reimburse defendant for the $25 paid Hickey. It was a voluntary payment made by defendant to one of plaintiff’s employees, without plaintiff’s knowledge or consent, to advance work in which defendant was interested and primarily for his own interest. There is no testimony that Beecher, when informed of it, agreed for plaintiff to pay it, and defendant himself says, “I can’t swear that he said he would.” No legal liability was established, and the court properly withdrew the item from the consideration of the jury.

The three remaining assignments of error discussed in defendant’s brief relate to the admission and rejection of testimony. Witness Beecher was asked by plaintiff’s counsel “whether or not Mr. Aldrich agreed to pay you 50 cents for the gravel,” and answered, “I am quite certain he did.” The answer was stricken out on motion of defendant’s counsel, and witness was then asked, “Q. Do you know whether or not he did ?” to which witness answered, against the objection that it was calling for a conclusion, “Yes,” afterwards stating, “I remember distinctly that he agreed to pay 50 cents.” This is but a fragment of the extended testimony of this witness upon that subject. The facts were gone into fully by both parties relative to their conversations, disputes, understanding, and agreement as to price, and each was fully cross-examined. Beecher testified positively that defendant wanted him to furnish gravel for the waterworks at 45 cents. He refused positively, stated it was in the fall, and demands were large; that he could get 50 cents, and, if he furnished defendant any, it must be at that price, and defendant then said, “Go ahead.” In view of his testimony on the subject, taken as a whole, we see no force in the contention that the answers objected to should be rejected as conclusions.

On cross-examination the court permitted counsel to inquire fully of Beecher as to all his dealings with defendant, including previous sales to him at 45 cents, but sustained objection to going into dealings with other parties as immaterial. Defendant assigns this as error on the ground that it was competent to show the “running price for that season.” Both parties claimed a specific agreement as to the price per yard for gravel to be delivered at a certain place towards the close of the season. We do not think the price paid by other parties for gravel delivered at other places competent evidence of what this contract was, or as having sufficient, if any, bearing upon the understanding of the parties to open that field of inquiry. It was shown and conceded that earlier in the season plaintiff had sold defendant himself gravel delivered at another dock for a less price than the contract price claimed by plaintiff for the waterworks delivery.

On cross-examination defendant’s counsel asked witness Beecher: “Now, what experience did you have in handling boats like the Shores prior to the purchase by you?” Objection to this as immaterial was sustained, and the ruling is assigned as error. It is claimed “this class of testimony was very material to show the incompetence of plaintiff as a reason why delivery to the full amount was not made.” This being the purpose, it goes to the question of recoupment, which we have already discussed, and need not be considered further.

We think the court allowed abundant latitude in the examination of witnesses as to the material issues of fact in the case, and submitted such issues to the jury with a very plain, full, and correct charge as to the rules of law involved and the duty of the jury in passing upon the facts.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    HAUTALA v. DOVER.
    1. Sams — Price—Trover—Contracts—Payment—Evidence.
    In an action for the conversion of an automatic piano, which plaintiff purchased of defendant on the Installment plan, claiming to have paid the entire purchase price, which defendant contended included interest and $50 more than plaintiff’s testimony tended to show, it was a question for the jury whether plaintiff’s contention was true as to the terms of the agreement which, it was undisputed, were modified at the time of delivery of the piano, and the court did not err in submitting it, though there was a writing which evidenced the original transaction.

      2. Damages — Value.
    The measure of damages, in trover, is the true cash value at the time and place of conversion, in the absence of testimony showing that the goods had a peculiar value to the owner.
    3. Same — 'Verdict—'Value.
    Upon defendant’s testimony, uncontradicted, that the property converted was worth $300 at the time of conversion, four years after it had been purchased, and after it had had considerable usage, a verdict for $527.80 was without basis, and should have been set aside.
    Error to Houghton; O’Brien, J.
    Submitted June 6, 1913.
    (Docket No. 42.)
    Decided July 9, 1913.
    Trover by Matt Hautala against Charles Dover for the conversion of an electric automatic piano. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Burritt & Burritt, for appellant.

      A. W. Kerr, for appellee.
   Steere, C. J.

This is an action of trover in which plaintiff recovered, in the circuit court for the county of Houghton, a verdict and judgment for $527.80 as the value of an automatic piano previously bought by him on contract from defendant, and later taken into possession by defendant under a writ of replevin issued from justice’s court, under the claim that there were $50 principal and about $45 interest yet due and unpaid upon the instrument. The replevin suit was dismissed by the justice on November 8, 1911, for want of jurisdiction. The record does not disclose that plaintiff asked any judgment for return of the property replevied, and no such judgment was entered, but on November 15, 1911, he commenced this action in trover.

Plaintiff claims that at the time said property was replevied he was absolute owner of the same and had fully paid for it according to his contract of purchase. Defendant claims that there was then due upon the contract the amount already stated, and that at the time of the trial of this suit the sum of $95.47 as a balance of principal and interest was past due and unpaid; that by the terms of said contract the title and right of possession did not vest in the plaintiff until the property was fully paid for. Plaintiff filed the ordinary declaration in trover, describing the property, and claiming damages of $2,000. Defendant pleaded the general issue and gave special notice of a written contract entered into between the parties, claiming thereunder that payments were past due and unpaid thereon, and that he therefore yet held the legal title and right of possession.

It is undisputed that plaintiff bought this piano from defendant, who delivered it to him on December 8, 1908, at plaintiff’s saloon in the city of Houghton ; that he then and there signed a written contract for the same and made a payment, the amount of which is in dispute, and was then given a receipt by defendant for $120; that he has since made payments and taken receipts therefor, entitling him to a credit on said written contract of $800.

The contract, which was admitted in evidence, is dated December 8, 1908, and is for a purchase of the automatic piano in question at the price of $850, $120 paid down, $30 on December 15th, $40 on January 20th following, and $40 each month thereafter until full payment is made, with interest at the rate of 6 per cent, per annum until paid. Title and right of possession are reserved in Charles Dover, the defendant, until full payment is made. The right is given defendant to retake possession in case of attempt to incumber, dispose of, or remove said piano from the county of Houghton, or if default is made in payments as specified, and in such case the moneys already paid are to become stipulated damages for nonfulfillment of the contract, loss in value, and for use or rental while in plaintiff’s possession. Plaintiff admits signing this contract, but repudiates it, claiming that he supposed it was a receipt for the piano; which he had previously bought by an oral agreement from defendant’s agent for $800, and on which he then paid $20 down, agreeing to pay $25 on delivery and $25 per month thereafter until the $800 was paid, without interest.

The disagreement resulting in this litigation arose over the amount paid and the interest. Plaintiff testified that he paid $100 when delivery was made, the $20 previously paid being added to his receipt to make the $120 for which it was given, and that he agreed to pay $40 per month thereafter. The receipts he produced total $800.

Defendant claimed but $750 had been paid and that $50 was credited as a rebate on the contract price. His explanation is as follows:

“We gave him a discount of $50, and $20 that Mr. Maliniemi had collected. * * * The order was brought in to me for $850, $100 down and $25 a month. When we came to close up the deal with Mr. Hautala, he wanted to get it cheaper, so we finally agreed that if he would pay $40 a month, pay $100 down and $40 a month, I would throw off the $50, and so he said that, but the price of the piano was $850. I had sold 14 of them at that price, and I was bound not to sell for anything less. * * * I haven’t any right to sell for anything less than $850. and it had to show on my contract $850.”

Defendant was a piano dealer and had been in the business since 1898. He had a store in Hancock and amongst other instruments sold nickel-in-the-slot or automatic, electric pianos, which were new at that time and in demand for use in saloons and other public places.

Maliniemi, a Finlander, who acted as his agent amongst Finnish people, took an order from plaintiff, who was a Finnish saloon, keeper, for- one of these pianos. He testified that the price was $850 and. $25 per month until paid for. Plaintiff claims it was $800 without interest; no written order was given. It was reported to defendant by the agent at $850 and $25 per month. Just what the understanding was between plaintiff and the agent is in our view immaterial, because according to the testimony of all parties, including plaintiff himself, there was a readjustment and a different agreement made when the piano was delivered and the deal closed. He got the piano for $800, which he claims was the original price with the agent, but the terms of payment were changed; the initial and subsequent payments being materially increased. Their conflicting testimony presents an issue of fact relative to the amount paid to the extent of $50 and as to interest on deferred payments.

Plaintiff, while admitting his signature to the contract, testified that he did not know it was a contract but supposed he was signing a receipt for the piano, and therefore did not ask any questions as to its contents, and could not read it over, being unable to read English and speaking English but imperfectly. He had been in the saloon business in this country for over 16 years, and it is «claimed that he could understand and speak English fairly well when talking about ordinary matters. His ability in this particular is a matter in dispute, as is also the question of whether or not the contract was read and explained to him. Defendant and Maliniemi, who signed as a witness, testified that it was. Plaintiff testified that it was not, and that, according to the agreement as made and understood by him, no interest was to be paid.

All parties concede, and defendant testified, that there was an oral agreement for a different price than that stated in the contract. Defendant calls it a rebate. Under the testimony given and undisputed facts shown, we think that the door was open for oral testimony as to just what the agreed price was and whether it was with or without interest. If it was without interest and plaintiff has paid the full $800, he is entitled to recover from defendants the value of the piano at the time and place of conversion. If he has only paid $750, or if it was not understood and agreed that there should be no interest, he cannot recover.

Irrespective ox the xoregoing questions, the verdict and judgment herein cannot be sustained. The measure of damages in a trover case is the true cash value of the property converted at the time and place of conversion, in the absence of any testimony showing a peculiar value in the goods to the owner, and there is no such testimony in this case. Tuttle v. White, 46 Mich. 485 (9 N. W. 528, 41 Am. Rep. 175); Iler v. Baker, 82 Mich. 226 (46 N. W. 377); Spoon v. Railway Co., 86 Mich. 309 (49 N. W. 35).

The verdict and judgment in this case were for $527.80. There was no testimony introduced upon which to base such a verdict. Plaintiff introduced no testimony, before he rested, as to the value of the piano, except that he paid $800 for it in 1908 on a contract with deferred payments and without interest. The only testimony as to value, at the time and place of the alleged conversion, is that of defendant, a piano dealer with many years’ experience in the business. He was cross-examined and re-examined on the subject, testifying, in part, as follows:

“It has been in use nearly four years. Its fair market value would be about $300. Its value today as compared with, when I first took it back, is just the same. It hasn’t been opened; everything stood right in the store there; never been played or anything of the kind. Never has been opened to take the nickels out. Mr. Hautala has the key. I merely took it to my store and have had it there ever since, ready to deliver at any time he pays the balance. * * * You see it is different with an electric piano than a family piano because it is played so much more; that increases the wear and tear. You play an electric piano ten times as much as you play an ordinary piano. * * * It was nickel-in-the-slot piano used in the saloon. There is a big difference in the market for these electric pianos today than in 1908. They were new then and would take in a lot of money. ‘.Now everybody has got used to them and they don’t play them near as much. The market for them today is not what it was four years ago in this community.”

This was the only competent testimony in the case of the true value of the property at the time and place of conversion.

Judgment is reversed, and a new trial granted.

Moore, McAlvay, Brooke, Kuhn Stone, Ostrander, and Bird, JJ., concurred.


text:
    EXCELSIOR WRAPPER CO. v. YUND.
    1. Equity — Adequate Remedy at Law — Accounting.
    Although equity will not usually assume jurisdiction of a case in which the court of law affords full and adequate relief, a bill lies for an accounting for money entrusted to defendant to purchase materials for complainant, to be expended in numerous contracts of purchase where defendant had neglected and refused to render an account, and the transactions were complicated, the credits and accounts were mutual and the facts solely within defendant’s knowledge.
    2. Accounting — Trust Relations.
    The' right to an accounting in equity is incident to most trust relations, and is not cut off by waiver of an answer under oath.
    3. Same — Principal and Agent.
    The mere existence of the relation of principal and agent, without peculiar and qualifying conditions, does not confer jurisdiction in chancery, but if lengthy or complicated accounts exist, or a discovery is required or trust relations are involved, a bill for accounting lies: defendant occupied the relation of a quasi trustee, as to funds intrusted to him to purchase materials, and the bill for an accounting was correctly sustained, on demurrer.
    Appeal from Kent; McDonald, J.
    Submitted June 3, 1913.
    (Docket No. 24.)
    Decided July 9, 1913.
    Bill by the Excelsior Wrapper Company against Philip Yund for an accounting. From ah order overruling a demurrer to the bill of complaint, defendant appeals.
    Affirmed.

      Clapperton, Owen & Hatten, for complainant.

      John J. Sterling, for defendant.
   Steere, C. J.

This suit comes before us on an appeal taken by defendant from an order of the circuit court of Kent county, in chancery, overruling his demurrer to complainant’s bill. The reasons stated in defendant’s demurrer why complainant is not entitled to relief in a court of equity are:

“Complainant has alleged no facts or circumstances in its bill of complaint which could not be shown, if true, in a court of law. It appears on the face of the bill of complaint that 'complainant claims defendant owes it a certain and definite sum, viz., $1,700, and therefore no accounting is necessary to determine the amount, if anything, due complainant. The bill of complaint on its face asks that defendant be required to account for $1,700 which is a certain and definite sum, and therefore complainant, if such sum is due it, had a complete and adequate remedy at law. The bill of complaint does not allege any circumstances or facts entitling complainant to any relief in a court of equity.”

Complainant is a corporation, organized under the laws of Wisconsin, with its principal office at Grand Rapids, Mich., and on September 16, 1911, filed a bill of complaint in the circuit court of Kent county, in chancery, against defendant, stating that in the year 1906 defendant entered into a contract with complainant whereby he became its agent for purchasing excelsior bolts in Southwestern Michigan, to be used in the manufacture of excelsior at defendant’s plant in Grand Rapids, according to an agreed schedule of prices and freight rates, which schedule was revised and amended from time to time, by agreement of the parties, to meet changing conditions; that defendant was given certain exclusive territory in which he was to contract for and purchase bolts, and all inquiring prospective sellers from that territory were, ref erred to him; that by the terms of said contract he was to purchase said bolts with funds advanced him by complainant at prices within his discretion, his compensation to be the difference between the price he paid and the prices in their agreed schedules; that in pursuance of said agreement he contracted for and purchased bolts and shipped them to complainant for a number of years, large sums of money being advanced him by complainant for that purpose; that the bolts when received by complainants were inspected, measured, credit slips mailed to him, and the amount, according to the scale of prices then applying, was credited to his account; that in the years 1909-1910 “repeated demands were made upon your orator by said defendant for further advances of money to pay for bolts which said defendant represented to your orator he was having cut and made ready for shipment, but which, because of the 'weather and scarcity of cars, it was impossible to load at that time;” that, relying upon such representations, complainant advanced large sums of money to him, as requested, for the purchase of bolts; that after said advance of money the bolts did • not come forward as rapidly as promised, and in answer to demands for shipments defendant made further requests for advances, but—

“Neglected and refused to make further shipments of bolts and to account for his purchases or the moneys received by him; and your orator charges the fact to be that there is a large sum of money, to wit, the sum of $1,700, which has been paid to said defendant, for which your orator has never received any bolts, and that it has been, and is, unable to obtain an accounting with said defendant.”

The bill further charges that defendant has entered into various contracts with various persons whose names are unknown to complainant, and has expended the money so advanced to him in full or partial payments upon said contracts, the benefits and advantages of which complainant is entitled to, but after repeated demands defendant has neglected and refused to make any statement or render any account in that connection; that defendant has disputed many of the items of account between the parties, denying the correctness of measurements, freight charges, and other items, but has not informed complainant as to the details of his claims; that the account between the parties “consists of many and complicated items;” that complainant is remediless according to the strict rules of the common law, and can only obtain relief in a court of equity. The bill prays for an accounting and that defendant be decreed to pay such amount as may be found due from him to complainant on such accounting.

In behalf of defendant it is particularly urged that his demurrer should be sustained because the bill is too vague, uncertain, and indefinite to require an answer; that only a money judgment is asked for and a certain and definite sum of money is alleged due from defendant to complainant, which calls for no accounting, and that for such relief there is a full, complete, and adequate remedy at law. In support of these contentions counsel cite Cochrane v. Adams, 50 Mich. 16 (14 N. W. 681); Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036); Detroit Trust Co. v. Old National Bank, 155 Mich. 61 (118 N. W. 729); and Laubengayer v. Rohde, 167 Mich. 605 (133 N. W. 535). Those cases and many others, there cited, discuss more or less exhaustively the vexed questions of concurrent and exclusive jurisdiction of law and equity in cases of fraud, accounting, etc., and all sustain the general proposition, stated in Detroit Trust Co. v. Old National Bank, supra, that “in this State equity has not taken jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity,” and they also recognize that where such a feature is shown equity will take jurisdiction to meet the particular exigency, even though there may also be a remedy at law. In Fred Macey Co. v. Macey, supra, it is said:

“And a suit for money had and received might answer every purpose, yet circumstances may justify an accounting or an injunction.”

The bill in this case shows trust relations. It alleges that defendant was intrusted by complainant with certain money to be expended for a specific purpose, and that he had neglected and refused to account for it; that the relations of the parties and their dealings' together involve an account between them with many and complicated items pro and con; that many of these items, and certain of the transactions out of which they arose, are solely within the knowledge of defendant. If they were equally known to both parties, and complainant fully informed concerning them, as counsel states, no accounting would be necessary; but the bill specifically alleges they are not, and on demurrer the bill is to be taken as true. Neither are the items of account all on one side, as in Laubengayer v. Rohde, supra, but, according to the allegations in the bill, there is a series of transactions with mutual demands.

That fiduciary or trust relations between the parties are involved is clearly alleged. Complainant charges contracts of purchase made by defendant, in which they had a joint interest, and on which full or partial payments were made with its money intrusted to him for that purpose; that it is entitled to the benefit of the same when disclosed, and that the names of the parties with whom such contracts were made are unknown to it, and that the specific undertaking involves unsettled and complicated accounts. In Cochrane v. Adams, supra, it is said:

"The right to an accounting in equity is incident to most trust relations, and is not cut off by a waiver of an answer under oath. Unless it is clear that complainant is already fully informed, he has a right to the information and the accounting.”

See, also, Morris & Co. v. Whitley, 183 Fed. 764 (106 C. C. A. 206), and Marvin v. Brooks, 94 N. Y. 71. Defendant contends complainant is shown by the bill to be fully informed, and states specifically that there is a definite sum of money, $1,700, due complainant from defendant. We have quoted the allegation in the bill. It does not state that any certain sum is due complainant, but that in these transactions it has paid to defendant large sums of money stated, under a videlicet, as amounting to $1,700, for which it has never received any bolts, and is unable to obtain an accounting with defendant.

The existence of a bare agency, without further peculiar and qualifying conditions, is not sufficient to confer equitable jurisdiction, but equity will take jurisdiction when, out of such agency, there arise lengthy and complicated accounts, the need of a discovery, or the existence of fiduciary or trust relations. In this case, when defendant was intrusted with complainant’s money, to be expended and applied in his discretion at various times and places in dealings with various parties unknown to complainant, for the specific purpose of purchasing a commodity in which both were materially interested, he became a quasi trustee of the money so intrusted to him and of the property purchased with such money; and he may be required to account in equity for his stewardship, especially where it has resulted in an account “of many and complicated items,” the details of which, in many instances, are peculiarly within his knowledge.

We think the bill makes out a case for accounting, and equitable relief in that connection, that it calls for an answer, and the trial court properly overruled the demurrer to said bill.

The decree is affirmed, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    FOSTER v. FOSTER.
    Appeal and Error — Divorce—Decree—Time.
    On its own motion this court will dismiss an appeal in divorce proceedings taken nearly two years after the entry of a decree, notwithstanding the subsequent filing of a petition for rehearing, denied by the circuit court. Jurisdiction of the Supreme Court in chancery appeals is limited to the maximum period fixed by statute and court rules.
    Appeal from Eaton; Smith, J.
    Submitted June 5, 1913.
    (Docket No. 21.)
    Decided July 9, 1913.
    Bill by Elizabeth Foster against Wesley Foster for divorce. From a decree for defendant, complainant appeals.
    Dismissed.

      G. D. Blaster, for complainant.

      Elmer N. Peters, for defendant.
   Ostrander, J.

A decree of divorce was granted upon the cross-bill of defendant December 3, 1910. The cause was contested, and the decree was upon the merits. No provision for alimony was made, and no reference made in the decree to property rights. The parties were then, and for some time had been, separated. On the 11th day of June, 1912, complainant filed in the court, and apparently in the cause, a petition in which it is asserted that, upon the pleadings and proofs in the divorce suit, no decree ought to have been granted to defendant, and, if it ought to have been granted to either party, the decree is erroneous because the court failed to settle property rights. It is prayed that the cause be reheard. A rehearing was denied; the court in a written opinion stating that complainant’s solicitor in the divorce proceeding conceded that complainant had not made a case entitling her to a decree, that certain representations were made to him respecting property matters, and that complainant’s solicitor agreed that, in view of the arrangement made, it would be proper to enter the decree for defendant, as was done. Complainant has made and settled a case for appeal to this court, in which is set out the testimony given in the divorce proceeding. In her brief it is argued that defendant made no case entitling him to a decree for divorce, and that in any event the court should have taken some action pursuant to Act No. 259, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 11496 et seq.). The case on appeal was settled December 13, 1912, notice of appeal being given November 12, 1912. The jurisdiction of this court in chancery appeals is limited to causes which are appealed within a certain time, and the maximum time for taking this appeal long ago expired. Perkins v. Perkins, 173 Mich. 690 (140 N. W. 161).

The appeal is therefore dismissed; and, as the jurisdictional question is not raised by defendant, and no motion to dismiss the appeal was made, the costs awarded to complainant are limited to a solicitor’s fee of $20.

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


text:
    PEOPLE v. MARTIN.
    Criminal Law — Disorderly House — House of III Fame.
    Notwithstanding a want of evidence that specific acts of lewdness had been committed in the house' conducted by respondent, between the dates charged in the information, which alleged that respondent kept a house of ill fame, a verdict finding her guilty was sustained by evidence of the bad character of the place, of the persons who resorted thereto, and respondent’s admissions on the stand that she had conducted a house of prostitution at the place in question, and about two weeks before the time stated in the information had been arrested as a common prostitute and had pleaded guilty, and on her testimony that, during the period charged in the pleading, men had visited the house at a late hour and had gone to an upper room with one of the female inmates, remaining until about four o’clock in the morning.
    Exceptions before sentence from Houghton; O’Brien, J.
    Submitted June 12, 1913.
    (Docket No. 120.)
    Decided July 9, 1913.
    Trixie Martin was convicted of keeping a house of ill fame.
    Affirmed.

      Grant Fellows, Attorney General, and J. A. Greene, Assistant Attorney General, for the people.

      Burritt & Burritt, for respondent.
   Ostrander, J.

Respondent is charged with keeping a house of ill fame, resorted to, etc., on February 3, 1912, and on divers other days and times between that day and February 20, 1912. It is certified to this court by the judge of the trial court that judgment has not been given and that exceptions have been settled pursuant to the provisions of 3 Comp. Laws, § 11964. We do not find in the printed record evidence that the practice indicated- in the statutes has been followed. The practice indicated is simple and it is recommended that counsel follow it. There is also a rule of this court which appears to haye escaped the attention of counsel for appellant. It is Rule 40, and it requires that the brief of a party bringing a cause into this court shall contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies, the questions involved, and the manner in which they are .raised. The fact that this is a case involving the personal liberty of the respondent alone induces us to consider any of the questions which appear to be raised by the exceptions and which are referred to in the brief for appellant.

Respondent was a witness in her own behalf. She testified that on February 3, 1912, and during the period laid in the information, she did not keep a house of ill fame nor one resorted to for purposes of prostitution and lewdness. She further testified, in substance and effect, that she had lived in the house in question for two years and up to the 17th or 18th of January, 1912, paid rent for it at the rate of $100 a month; that she kept a house of prostitution there for a term and named four or more girls whom she kept there; that she and the other inmates were arrested on or about January 16, 1912, taken before a justice of the peace, and all pleaded guilty of being common prostitutes and paid fines. At that time, she testified, she quit the business and was not carrying it on on February 3, 1912, nor thereafter within the period laid in the information. Two of the girls arrested with her were there February 3d. She testified that they were not then prostitutes, although previous to that time they had been. And she testified that with her permission and knowledge no acts of prostitution and lewdness occurred there during the period laid in the information. But she testified also that on the night of February 3d men came to the house at a late hour, were admitted, or, finding the door open, entered, one of them at least visited an upper room with one of the girls, all of them remained the most of the night, an affray occurred, an officer was sent for and came at about 4 o’clock in the morning. She did not concern herself with the purpose of the visit or with the conduct of the other inmates of the house. In view of this testimony and of the further undisputed testimony of the situation and reputation of the house, the exceptions for respondent, some of which present what would in a proper case be interesting questions, become unimportant. For examples, the rulings admitting testimony of respondent’s reputation for chastity and the reputation of other inmates of the house and admitting testimony of the general reputation of the house, whether they were all of them right or not are unimportant. The remaining question, namely, whether during the period laid the house was resorted to for the purposes already stated, was one to be answered as her own testimony and that of others should be viewed by the jury. No testimony of any specific act of lewdness on February 3d or thereafter was introduced. But we think it was for the jury to say whether, as claimed by respondent, the former actual character of the place and admitted earlier habits of its inmates had changed. The testimony of the acts of the girls other than respondent, of the serving of beer to the men by the girls, or some of them, on the night of February 3d, of the conduct of the men who were there, was sufficient, with the testimony of the respondent, to support a verdict of guilty. The critio.isms which are made of the charge to the jury seem to us unwarranted.

Respondent’s exceptions are overruled, and the cause remanded.

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

         5 How. Stat. (2d Ed.) §15135.


author: Stone, J.

text:
    PEOPLE v. KENNEDY.
    1. Criminal Law — Information—Immoral Advertisement.
    An information based on Act No. 62, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 5299), charging in the language of the first section of the statute that defendants did unlawfully advertise in a certain pamphlet annexed to the information “the treating and curing of venereal diseases, the restoration of lost manhood and lost vitality and vigor, which said advertisement contained expressions synonymous with the words Tost manhood,’ Tost vitality and vigor,’ ” sufficiently apprised the defendants of the nature of the offense charged.
    2. Same — Indictment and Information — Surplusage.
    Matters included in the pamphlet that did not relate directly to the charge of the information might be treated as surplusage, and did not affect the validity of the pleading.
    3. Evidence — Correspondence—Sufficiency of Proof.
    Testimony of. a distributing agent that he had received from respondents a letter, offered in evidence, that it contained a blank affidavit, also introduced, which mentioned the names of respondents, to be filled out to prove the distribution of certain pamphlets or advertising matter in behalf of respondents, that the witness had received the letter from them in reply to one written by him, with testimony identifying the advertising matter and showing its distribution, held, to warrant .the admission of letter and blank affidavit in evidence.
    4. Same — Medical Testimony.
    Respondents accused of publishing advertising matter in contravention of Act No. 62, Pub. Acts 1911 (2 How. Stat. [2d Ed.] §5299), were not prejudicially affected by testimony of a physician explaining the phrase “venereal diseases,” and that the terms “lost manhood” and “lost vigor” had no medical significance.
    5. Criminal Law — Advertising Matter — Statutes — Instructions to Jury — Trial.
    It was proper to submit to the jury the letter offered in evidence, with instructions that it tended to show that the respondents proposed to send, for the purpose of distribution, certain pamphlets, and that the testimony tended to show that the pamphlets were received and distributed as charged, that the question whether the pamphlet violated the statutes was for the jury, and whether the language used was unlawful or synonymous with the prohibited phrases.
    6. Same — Questions oe Law and Fact.
    While the court might have instructed the jury that the advertising matter distributed by respondents was a violation of the law, the finding of the jury that the respondents were guilty determined the point against them, and the submission of the question was not prejudicial to appellants.
    7. Same — Election oe Counts.
    The State could not be compelled to elect between two counts, one of which charged that respondents unlawfully advertised to treat and cure venereal diseases, etc., as set forth in a pamphlet annexed to the information, the other count alleging that the respondents advertised under their firm name that they were specialists in such diseases, as shown by said pamphlet.
    8. Same.
    Rut where the prosecuting attorney elected to proceed under the first count, there was no ground of complaint.

      9. Constitutional Law.
    Said Act No. 62, Pub. Acts 1911, is valid and constitutional, and tbe court should give effect to the legislative . purpose by so construing the language as not to render it invalid.
    Exceptions before sentence from Wayne; Hosmer, J.
    Submitted June 12, 1913.
    (Docket No. 119.)
    Decided July 9, 1913.
    James D. Kennedy and Charles J. Kennedy were convicted of a violation of Act No. 62, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 5299).
    Affirmed.

      Grant Fellows, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.

      Bumps & Bishop, for respondents.
   Stone, J.

The respondents were charged in the information, which followed the complaint and warrant, with a violation of certain of the provisions of Act No. 62 of the Public Acts of 1911 (2 How. Stat.. [2d Ed.] §5299), entitled:

“An act to prohibit certain classes of immoral advertising and provide punishment for violators thereof.”

Section 1 of the act, in so far as it applies to the first count in the information, is as follows:

“Any person who shall advertise in his own name' or * * * firm or pretended firm, * * * in any * * * pamphlet, circular * * * an advertisement of the treating or curing of venereal diseases, the restoration of ‘lost manhood’ or ‘lost vitality or vigor’ * * * shall be guilty of a misdemeanor,” etc.

Respondents were examined upon said charge and were bound over to the Wayne circuit court for trial..

The first count of the information charged that the respondents ■—

“To wit, on the 10th day of August, A. D. 1912, at the city of Plymouth, in said county, unlawfully did advertise under the firm name and style of Drs. Kennedy & Kennedy, in a certain pamphlet and circular, an advertisement of the treating and curing of venereal diseases, the restoration of lost manhood and lost vitality and vigor, which said advertisement contained expressions synonymous with the words ‘lost manhood,’ ‘lost vitality and vigor,’ and which said advertisement is in words and figures as follows, to wit:” (Here was annexed the entire of the printed pamphlet of 20 printed pages.)

The second count of the information charged respondents, at the same time and place, with having unlawfully advertised under their firm name that they were specialists in diseases of the sexual organs and diseases caused by sexual vices, self-abuse, and diseases of like kind, by then and there distributing and circulating certain pamphlets and circulars, in words and figures following, to which count the same printed pamphlet was annexed as to the first count.

Upon arraignment respondents stood mute, and a plea of not guilty was entered for each. Upon the trial both respondents were, by the jury, found guilty under the first count of the information; the prosecutor having elected to go to the jury upon the first count only, during the charge of the court.

The case has been brought here for review on exceptions before sentence, and there are ten assignments, of error. The several assignments of error have been discussed by counsel for respondents under the following heads:

I. Defects in the information.

(a) That the information charges no offense under the laws of this State.

(b) That the information contains no statement of facts constituting any specific offense.

(c) That the information does not inform the accused of the nature of the offense intended to be charged.

II. Errors in admission of evidence on the trial.

(a) That Exhibits 1 and 2, consisting of a letter and blank form of affidavit purporting to come from respondents, were improperly admitted in evidence.

(b) That Exhibits 3, 4, 5, and 6, being copies of the pamphlet attached to the information, were improperly admitted in evidence.

(c) That the testimony of Dr. James E. Burgess, as set forth in assignment of error No. 3, was improperly admitted.

III. Errors in the charge of the court.

(a) That the court erred in charging as follows:

“The letter has been offered in evidence. The testimony of the letter tends to show, if written by the defendants, that they proposed to send for the purpose of distribution certain pamphlets to Plymouth, and the testimony of the witness would tend to show, and you may find that it does show, that the pamphlets were so received and distributed as you have heard the testimony.”

(b) That the court erred in further charging the jury as follows:

“I think it is for you to say whether that pamphlet is a violation of the provisions of this act, and whether it does in substance and in fact advertise them as specialists mentioned in the information, and whether in fact also the language there is not equivalent to the expressions prohibited by the statute, lost manhood, lost vitality or vigor.”

IV. Election of counts.

(a) That the court errea in not compelling the prosecuting attorney to elect which count he would go to the jury on when requested by respondents.

(b) That the court erred in not explaining to the jury what part of his charge would not apply to the first count and what part of the testimony should be withdrawn from the consideration of the jury.

V. That the act in question is unconstitutional and void.

1. Counsel for respondents state in their brief that the respondents were examined upon the charge before the examining magistrate, and the count upon which they were convicted charged them with advertising in a certain pamphlet or circular, a copy of which was annexed to the count. We do not think that it can be claimed that the respondents were surprised or that they were not sufficiently apprised of what they Were to meet. The evidence tended to show that the entire pamphlet was issued by respondents; and an inspection of it satisfies us that in its entirety it is an advertisement of the healing and curing of venereal diseases, the restoration of lost manhood and lost vigor, as charged in the count. We think that the general rule that, in charging or pleading offenses created by a statute, it is sufficient to describe the offense in the words of the statute, applies here, and that the information was sufficient. Rice v. People, 15 Mich. 9; People v. Butler, 122 Mich. 35 (80 N. W. 883); People v. Kennedy, 105 Mich. 75 (62 N. W. 1020); People v. Comstock, 115 Mich. 305-313 (73 N. W. 245); People v. Glazier, 159 Mich. 528-537 (124 N. W. 582); People v. Quider, 172 Mich. 280 (137 N. W. 546); State v. McKee, 73 Conn. 18 (46 Atl. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124). In the Quider Case, Justice Steere, speaking for this court, said:

“In criminal proceedings the accused is entitled to demand and know the nature and cause of the accusation against him. Beyond that, technical elaboration of pleadings fails to subserve the ends of justice, and becomes but ingenious pitfalls for one side or the other. In charging the offense, a detailed recital of the evidence by which it will be established is not required. Such facts must be averred that, if admitted, would constitute the offense and establish the guilt of the accused.”

Moose v. State, 49 Ark. 499 (5 S. W. 885); People v. West, 106 N. Y. 293-295 (12 N. E. 610, 60 Am. Rep. 452).

Even though some of the matters in the pamphlet do not relate directly to the matters charged against the respondents, such matters may be rejected as surplusage. As was said in People v. Laurence, 137 N. Y. 517, 524 (33 N. E. 547, 549):

“It is not a legal ground of attack upon this indictment that it contains more than was necessary under the provisions of the Code. It has always been the rule that surplusage no more vitiates an indictment than a pleading in a civil action. Lohman v. People, 1 N. Y. 379 (49 Am. Dec. 340); Dawson v. People, 25 N. Y. 399.”

We have examined the numerous cases cited by respondents' counsel and think them readily distinguishable from the instant case. There are peculiar reasons,' applicable to offenses of the nature here charged, for not setting out in full all of the obscene matter contained in a publication. The early case of People v. Girardin, 1 Mich. 90, is instructive upon this subject.

The case of Commonwealth v. McCance, 164 Mass. 162 (41 N. E. 133, 29 L. R. A. 61), cited by respondents' counsel, has been, examined by us, and it appears that in that case the indictment was held bad because it neither contained a copy of the obscene matter complained of nor any reference or description thereto, but simply named the book containing the matter. The book offered in evidence in that case contained 710 printed pages. It was known as the “Decameron of Boccaccio” and contained ten novels or stories for each of ten days’ entertainment. Of these 100 novels, only six were introduced in evidence by the commonwealth, and the court said:

“We cannot knew what parts of the book the grand jury found to be obscene, indecent, and impure, and we know of no way whereby from the indictment the defendant could know before the trial what parts of the book would be put in evidence by the commonwealth.”

The court then quotes from Commonwealth v. Holmes, 17 Mass. 336, as follows:

“ ‘The second and fifth counts in this indictment are certainly good for it can never be required that an obscene book and picture should be displayed upon the records of the court, which must be done if the description in these counts is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency, in order to punish it.’ This decision has been followed by many of the courts in this country” —citing, among other things, People v. Girardin, supra.

Neither do we think the case is controlled by State v. Smith, 17 R. I. 371 (22 Atl. 282), cited by respondents’ counsel. It seems to be held in Rhode Island that it is not sufficient to charge such an offense in the language of the statute.

We are of opinion that the first count in this case, the pamphlet annexed being a part thereof, is sufficient in the law to apprise the respondents of the charge against them. To advertise in a pamphlet is to give public notice by such means. Here the whole advertisement is set out according to its tenor.

2. It is contended that Exhibits 1 and' 2, consisting of the letter and blank form of affidavit, were improperly admitted in evidence.

Charles W. Pullen, a witness sworn on behalf of the people, testified that he lived at Milan, Mich., and was in the distributing business, manager of the Redmond Distributing Company, distributing advertising matter. He was asked if he had any correspondence with the respondents. After the discussion of objections raised by respondents’ counsel to any evidence in the case because of defects in the information and the overruling of that objection, the witness answered that he did have correspondence with the respondents. He stated when he received the first letter from them, and stated that it was about August 1st. He was then shown Exhibit 1 and asked if that was a letter which he had received from the respondents, and he answered in the affirmative.' That letter was received in evidence under the general objection that it was incompetent, immaterial, and irrelevant. The letter read in evidence, omitting the printed heading, was as follows:

“Detroit, Mich., Aug. 5, 1912.-
“The Redmond Distributing Agency,
“Milan, Mich.
“Dear Sirs:
“In reply to your recent letter let us say that we will send 1,000 booklets to Plymouth by express, 1,000 to Dundee by express and 2,500 by freight to Milan, instead of sending 500 to Clinton, we are sending 1,000 to Dundee.
“As soon as the distributing is done, have the enclosed affidavit blank filled up and sworn to, for which we allow 50 cents for expense, return it to us and we will forward your check.
“Very truly yours,
“Drs. Kennedy & Kennedy.”

Exhibit 2 was the blank affidavit accompanying the letter and reads as follows:

“No. Sworn Statement of
“Distributing Agent for Drs. Kennedy & Kennedy
“City of
“County of
“State of
“Town
"County
“State being duly sworn deposes and says:
“1st. That he has been acting as the agent of has done the distributing of certain booklets as advertising matter for Drs. Kennedy & Kennedy within the following territory: [Then there are five blank lines.]
“2. Between date and date 191
“3. That he distributed number of booklets, rate dollars per M.
“4. That said distributing has been faithfully done and in strict compliance with the instructions contained in the application for agency signed by me.
“5. That he did not employ, hire or engage any person under 18 years of age to distribute any of said booklets and none of said booklets were intentionally or negligently wasted or destroyed by this deponent, or by any other person, to his best knowledge and belief.
“Euther deponent saith not.
“................. Agent or Distributor.
“Subscribed and sworn to before me this................... day of........................ 191..
“................, Notary Public.
“ County State.”

This witness further testified that he had an agent at Plymouth, Mich., by the name of Alton Richwine, but witness did not see the pamphlets that his agent distributed at Plymouth.

Alton Richwine testified, in substance, that he lived at Plymouth, Wayne county; that he was nearly 17 years old; that during vacation from school he had “peddled these bills” (that is, distributed some pamphlets in the township of Plymouth for the Redmond Distributing Company that Mr. Pullen was connected with) ■; that he distributed them at the request of Mr. Pullen; that he distributed 600, a few days prior to the 15th of August, around the 10th. He was then shown Exhibit 3, which was a copy of the pamphlet attached to the information, and identified it as like those he.distributed in the township of Plymouth; he testified that he distributed them from house to house and placed them on the porches and sometimes in farmers’ rigs; that these pamphlets were delivered to him at Plymouth; and that they came by freight from Milan.

Other witnesses testified and were shown other exhibits identical in appearance with the pamphlet attached to the information; they testified that they found them at their houses and on their porches at about the time charged in the information.

Another witness testified that he knew the respondents and had known them for some years, and knew their place of business in the city of Detroit at Michigan and Lafayette, the Triangle, and Griswold, “as they call it.” It may be here stated that the pamphlet received in evidence and attached to the information, upon the inside front cover, contained the following words, “Drs. Kennedy & Kennedy, corner Michigan & Griswold streets, Detroit, Michigan,” below which is the cut of a building, there appearing upon its front the name “Drs. K. & K.,” below which is the following: “Located in our own office building cor. Michigan, Griswold and Lafayette Sts.”

It will be observed that the letter above copied states that it is “in reply to your recent letter.” We are of opinion that, in connection with the other evidence, this letter was admissible in evidence under the rule stated in People v. Hammond, 132 Mich. 422, 425-427 (93 N. W. 1084). And in the same connection, we think that the inclosure, the blank affidavit, was properly received in evidence.

In this connection further objection was made to the evidence of Dr. James E. Burgess, a witness on behalf of the people, who testified as to what was meant in medicine by the term “venereal diseases,” and stated that a venereal disease was a disease of the venereal organs, describing them; and also testified that the terms “lost manhood” and “lost vigor” had no medical significance. We are unable to see wherein the respondents were prejudiced by the testimony of • Dr. Burgess. Strang v. People, 24 Mich. 1-9.

3. We have examined the charge of the court in the instance complained of in the seventh assignment of error. We think that the letters were properly before the jury, and that the instruction as to their contents was properly submitted.

As to the eighth assignment of error, we think the court might well have said to the jury that the pamphlet in evidence was a violation of the provisions of this act. He left it, however, to the jury. They, .having convicted the respondents, necessarily found that the pamphlet was a violation of the act. It should be noted that, at the time this portion of the charge was given, the prosecuting attorney had not elected to go to the jury upon the first count alone, and both counts were then before the court and jury.

4. The election of counts. We think that under our own authorities the case might well have been submitted to the jury upon both counts in the information, and that the people should not in such a case be compelled to elect between the counts. Van Sickle v. People, 29 Mich. 61; People v. Sweeney, 55 Mich. 586 (22 N. W. 50); People v. McDowell, 63 Mich. 229 (30 N. W. 68); People v. Dyer, 79 Mich. 480 (44 N. W. 937); People v. Summers, 115 Mich. 537 (73 N. W. 818).

The prosecutor, however, elected to go to the jury on the first count. There is nothing here of which the respondents can complain, as it appears that the court, upon the election having been made, charged the jury as follows:

“Very well, gentlemen of the jury, I think under those circumstances, the election having been made to go only on the first count, of course the question in this case is whether this pamphlet does advertise the cure of venereal diseases, the restoration of lost manhood, and lost vitality and vigor.”

5. We are unable to agree with counsel for the respondents that the act in question is unconstitutional. The first section of the statute describes the offenses charged in the information in the language We have given. Section 3 of the act provides as follows:

“It is further enacted that any advertisement found in any newspaper, pamphlet or circular containing the words ‘lost manhood,’ ‘lost vitality or vigor,’ or other expressions synonymous therewith, shall be prima facie evidence of the guilt of the party or parties subscribing to the said advertisements, their agents or representatives, and the same penalty shall apply to the publishers of papers containing the same as prescribed in section one.”

It is the duty of the court to give effect to a legitimate legislative purpose -plainly indicated, if it can reasonably be done, and not construe language so as to invalidate an act where the language is fairly susceptible of a construction consistent with validity. The act appears to be a reasonable police regulation.

The court in its charge to thé jury, instead of using the word “synonymous,” left it to the jury to find “if the language there is not equivalent to the expressions prohibited by the statute, ‘lost manhood,’ ‘lost vitality or vigor.’ ”

Counsel for respondents cite the case of Hewitt v. State Board of Medical Examiners, 148 Cal. 590 (84 Pac. 39, 3 L. R. A. [N. S.] 896, 113 Am. St. Rep. 315, 7 Am. & Eng. Ann. Cas. 750). In that case the statute provided that “all advertising of medical business in which grossly improbable statements are made” should constitute unprofessional conduct, for which the medical examiners might revoke the certificate; and the act did not define what statements should be “grossly improbable,” and the court there held that the statute left it to the whim or caprice of the medical examiners without any standard for their guidance, and that it was too indefinite and .uncertain to be enforced by the revocation of the physician’s certificate and was void. We think that case readily distinguished from the instant case. The words “lost manhood” and “lost vitality and vigor” are ordinary words which could be readily understood by the jury, and it was properly left to them to say whether the publication complained of contained words that were synonymous with those terms or equivalent to those terms. A perusal of the pamphlet in evidence shows that respondents carefully avoided the use of the words “lost manhood,” “lost vitality and vigor,” but they used words and phrases that are just as effective and as well understood as the words mentioned in the statute.

The language used by the supreme court of errors in State v. McKee, 73 Conn. 18, 31 (46 Atl. 409, 414 [49 L. R. A. 542, 84 Am. St. Rep. 124]), is appropriate here:'

“The gist of the statutory offense is the massing of these immoralities in one publication for circulation, and demands that the paper shall be mainly or principally devoted to the publication of such material. The law cannot be evaded by intermingling other material, whether for the purpose of evasion or of securing attention to the main subject-matter, so long as the principal resulting effect is the circulation of this massed immorality; but that main result must appear, or the offense is not committed. * * * The court properly left to the jury the determination, as a question of fact, whether the papers in evidence were thus devoted to the publication of material claimed to be within the statutory description.”

In Commonwealth v. Buckley, 200 Mass. 346 (86 N. W. 910, 22 L. R. A. [N. S.] 225, 128 Am. St. Rep. 425), which was an indictment charging the defendant with selling a book containing obscene, indecent, and impure language, manifestly intending to corrupt the morals of youth, the court said:

“The defendant strongly contends that the judge should have defined at greater length than he did the terms ‘obscene,’ ‘indecent,’ ‘impure,’ and ‘manifestly.’ While it is true perhaps that by illustration or the use of synonyms the judge might have explained more fully the meaning of these* terms, still it is to be remembered that they are not technical terms. They are common words and may be assumed to be understood in thejr common meaning by an ordinary jury. So far as the judge undertook to define we see no error, and we cannot say as matter of law that his failure to define more at length was erroneous in law or prejudicial to the defendant.”

We find no reversible error in the record, and the conviction of respondents is affirmed, and the case will be remanded to the circuit court for judgment.

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


text:
    ENNEST v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Receivers—Actions—Commencement—Process—■ Service — Principal and Agent.
    Service of a declaration and rule to plead upon the station agent of a railroad corporation, after the appointment f receivers by the Federal court and notice to the agent to continue his employment for the receivers as theretofore, is a valid and sufficient commencement of suit against the railroad company.
    2. Same.
    The corporation continued to exist as a railroad company, although it was in the hands of receivers, and its station agent remained, for the purpose of serving process, the agent or employee of the corporation within the meaning of Act No. 260, Pub. Acts 1899 (5 How. Stat. [2d Ed.] §§13523, 13524).
    Certiorari to St. Clair; Law, J.
    Submitted June 5, 1913.
    (Docket No. 5.)
    Decided July 9, 1913.

      Case by Theodore Ennest against the Pere Marquette Railroad Company for personal injuries. Defendant filed a plea in abatement, which was overruled. Defendant brings certiorari.
    Affirmed.

      Bills, Parker, Shields & Brown, for appellant.

      Stevens, Graham & Stevens, for appellee.
   Stone, J.

This case comes into this court on certiorari to review the order of the trial judge overruling defendant’s plea in abatement to the declaration. On October 24,1912, plaintiff filed a declaration against defendant in the circuit court for the county of St. Clair, on which was indorsed a rule to plead. A copy of this declaration, with notice of the rule to plead, was served on John J. Coryell, station and ticket agent at the Port Huron, Mich., station, a station along the line of the defendant railroad, on November 1, 1912. The plaintiff seeks to recover damages for personal injuries alleged to have accrued to him on December 31, 1911, by reason of the negligence of the defendant. The testimony taken on the trial of the issue formed on the plea in abatement shows that John J. Coryell had been, for about six years prior to April 5, 1912 (the date of the order creating the receivership hereinafter described), the station and ticket agent of defendant at the Port Huron station; that on that day he received notice from the receivers of their appointment, and afterwards acted under their control, and was so acting on November 1, 1912, as such station and ticket agent. That notice was as follows:

“Detroit, Michigan, April 5, 1912.
“12 o’clock noon.
“All officers and agents of the Pere Marquette Railroad in the United States:
“By virtue of an order made this day by the district court of the United States for the eastern district of Michigan, in the case of the American Brake-shoe and Foundry Company against the Pere Mar-, quette Railroad Company, the undersigned have been appointed and have qualified as receivers of all the property and business of said Pere Marquette Railroad Company, of every kind and character and wherever situate and have taken possession and do hereby take possession of all such property and business and pursuant to the authority of the said court do hereby direct the continuance of said business in the names of the undersigned as receivers and until further orders substantially as it has been conducted theretofore.
“Until further orders all agents and employees of the company connected with the business will perform the duties heretofore performed by them, and make reports and remittances as heretofore. The depositories of the company will be the depositories of the undersigned and the existing tariffs and rules and regulations will remain in force until further notice.
“Newman Erb,
“Dudley Waters,
“Frank Blair,
“Receivers.”

The plea in abatement (filed .with the plea of the general issue under the rule) alleges that John J. Coryell, the person upon whom the service of declaration with rule to plead was made, on November 1, 1912, was not at the date of such service an agent or employee of the Pere Marquette Railroad Company, and that the service of said declaration and rule to plead on him was wholly inoperative to bind the defendant, or to give the court jurisdiction over it. On the trial of the issue it appeared that on April 5,1912, the defendant, by the order of the district court of the United States for the eastern district of Michigan, southern division, was placed in charge of the above-named receivers. This order gave authority to the receivers, among other things, to take possession of all the railroads and other property of the defendant — •

“To run, manage, and operate the said railroads and property; * * * to maintain, preserve, and protect the said property and assets, and to keep the same in proper condition and repair, so that the same may be safely and advantageously operated and used; * * * to secure and develop the business of said railroad company; * * * to employ and discharge and fix the compensation of all * * * officers, managers, superintendents, attorneys, agents, and employees, as in their discretion shall from time to time be needed in the performance of their duties as such receivers; * * * to keep the railroads and other property of said railroad company and its auxiliary companies employed and used in the manner in which they have heretofore been used and employed, so far as the said receivers, in their discretion, shall see it to be for the best interests of all parties concerned in the property and business of said railroad company; * * * to institute and prosecute all such suits as may be necessary in their judgment for the proper protection of the property, and trust hereby vested in them; and likewise to defend all actions that may be instituted against them, and also to appear in and conduct the prosecution or defense, as the case may be, of any suits now pending or hereafter commenced in any court against the said railroad company, the prosecution or defense of which will, in the judgment of said receivers, be necessary for the proper protection of the property and business placed in their charge. * * * That the said railroad company and its officers, directors, agents, and employees and all other persons claiming to act by, through, or under said company, and all other persons whosoever, be and hereby they are severally and collectively enjoined and restrained from interfering in any way whatever with the possession and management of any part of the property over which the said receivers are hereby appointed, or interfering in any way to prevent the discharge of their duties or their operating the same.”

The learned circuit judge in stating his reasons for overruling the plea in abatement, in part said:

“As will be seen from the above brief extracts from this order, the court which made it contemplated that the receivers should operate and manage the defendant railroad temporarily. This receivership has not dissolved the corporation known as the Pere Marquette Railroad Company, nor does the proceeding contemplate the dissolution, or the winding up of the corporation. For the purpose of attaining certain ends the railroads and other property of defendant have, by order of the court, been taken from the possession and management of the regular officials of defendant, and given over to certain officers of the United States district court, called receivers. By this order the receivers are directed to operate the railroads of defendant. In other words, instead of being under the management and control of the regular officials of the corporation, the Pere Marquette Railroad was, on the 1st day of November, 1912, under the management of the receivers, but the Pere Marquette Railroad Company was still in existence. It was still a ‘railroad company in this State.’ It had a ‘station agent’ and ‘ticket agent’ at the Port Huron station, ‘a station along the line * * * of the railroad of such company.’ This station and ticket agent was John J. Coryell, the person served in this action on November 1, 1912. It is true that the record in this case shows that said agent, on notice from the receivers, attorned to them instead of his former superiors, the officials of the company. However, the Pere Marquette Railroad Company was still ‘a railroad company in this State,’ though its affairs were now under a different management, and Mr. Coryell, though now under the direction of the receivers, was still the station and ticket agent of ‘a railroad company in this State’ within the meaning of the statute to which I shall now refer, and still is such agent. Act No. 260 of the Public Acts of 1899 (5 How. Stat. [2d Ed.] §§ 13523, 13524), provides as follows:
“ ‘That whenever in any suit or proceedings, either in law or equity, it shall become necessary to serve any process, notice or writing upon any railroad company in this State, it shall be sufficient to serve the same upon any station agent or ticket agent at any station or depot along the line, or at the end of the railroad of such company.’ ”

That Mr. Coryell was the station and ticket agent at the station at Port Huron, of the railroad of the defendant, there can, we think, be no question.

Upon whom process shall be served in order to institute a suit against the artificial person known as a corporation is in this State a matter of statute; and, as here appears, we have a special statute governing service upon railroad companies. The question here raised seems to be a new one in this State, and we are at liberty to adopt the more reasonable rule. May it be said that in this case' Mr. Coryell was, at the time of the service upon him, the proper person to receive service, notwithstanding his relation to the receivers? It is worthy of note that there was nothing in the order appointing the receivers, or in the notice served on the station or ticket agent, removing such agent from his former position. The language of the notice was significant:

“Until further orders all agents and employees of the company connected with the business will perform the duties heretofore performed by them, and make reports and remittances as heretofore.”

Mr. Coryell might continue the agent of the company, for any purpose not inconsistent with his duty to the receivers. Such double agency is not rare. By the order appointing them the receivers, were authorized and empowered to appear and defend any suits which might be commenced against the company, the defense of which would in their judgment be necessary for the proper protection of the property and business placed in their charge. Any suit against the company to recover damages might well be said to be a suit aifecting the property which they had in charge, and service of process on the station or ticket agent at any station on the line of the road might be to the advantage of such receivers. There would be nothing incompatible in Coryell maintaining his relation to the corporation, and to the receivers at the same time. It is very evident that there is nothing found in this record justifying us in holding that he has ever been discharged from his position by either the company or the court. Outside of this State this question has been passed upon by the following courts of last resort, and the courts have differed in their conclusions: In the State of New York, in the case of Faltisko v. Railroad Co., 12 Misc. Rep. 478, 33 N. Y. Supp. 679, affirmed in 151 N. Y. 650 (46 N. E. 1146), it was held that the appointment of a receiver of a railroad company does not affect the relation of a division superintendent as “managing agent” of the company, on whom the statute provides process against the company may be served, where he was never removed by the company, but retains his position after the appointment of the receiver. In Tennessee, in the case of Simpson v. Railway Co., 89 Tenn. 304 (15 S. W. 735), it was held that suit against a railway corporation will not be abated upon its plea, averring that the suit had been brought after the road had passed into the hands of a receiver, and that process had been served upon a station agent of the receiver, where it appears that such agent had been originally employed by the company, and continued in the same service under the receivership. The court said:

“It will be remembered that this is no effort on the part of the receiver to abate suits by reason of a right to intervene and compel a discontinuance of actions except in court where the receivership with litigation involving it is pending but an effort by the company to deny its agent because its road had been placed in the hands of a receiver. In such case no reason appears to us why he does not still, in a proper sense, represent the company which in another is represented by the receiver.” ,

See, also, Louisville, etc., R. Co. v. Cambie, 46 Ind. 277; Grady v. Railroad Co., 116 N. C. 952 (21 S. E. 304).

Upon the other hand, defendant has called our attention to the following cases: Cherry v. Railroad Co., 59 Ga. 446; Heath v. Railway Co., 83 Mo. 617. Cherry v. Railroad Co. has been followed by the Georgia court in Cain v. Railway, 7 Ga. App. 461 (67 S. E. 127). Defendant claims that these last-cited cases hold that when the property of a railroad company has passed into the hands of receivers, and its road is being operated by> them under an order of the court, service of process on one of the employees of the receivers will give no jurisdiction over the company. We think that the Georgia cases substantially so hold; but it is worthy of note that in Cherry v. Railroad Co. the court calls attention to the fact that the agent under the new arrangement was required to give, and did give, a bond to the State for the'faithful performance of his duties, and that the agent had ceased to act for the company, and had become the agent of the State. In Heath v. Railway Co. it appeared that the injury complained of resulted from the acts of the receiver, or his agents, within the scope of his official duty in operating the road, and that the defendant had nothing to do with it, and, by virtue of the receivership, was prohibited from operating the train, which came in contact with the plaintiff's stock.

We are of opinion that the rule stated by the New York and Tennessee courts in the cases above cited is the better and more reasonable rule, and that the circuit judge did not err in overruling the plea in abatement.

The order of the circuit court is therefore affirmed.

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


author: Kuhn, J.

text:
    BARNHART v. MICHIGAN CENTRAL RAILROAD CO.
    Certiorari to Ingham; Wiest, J.
    Submitted June 11, 1913.
    (Docket No. 72.)
    Decided July 9, 1913.
    Case by Sherman T. Barnhart against the Michigan Central Railroad Company and the Pere Marquette Railroad Company for personal injuries. The court overruled defendant’s plea in abatement, and defendant last named brings certiorari.
    Affirmed.

      Bills, Parker, Shields & Brown (Cummins & Nichols, of counsel), for appellant.

      Raudabaugh & Person, for appellee.
   Kuhn, J.

This case involves substantially the same state of facts and the same legal question as the case of Ennest v. Railroad Co., ante, 398 (142 N. W. 567), and the disposition of this case is necessarily controlled by the decision rendered therein. We are therefore of the opinion that the plea in abatement was properly overruled.

The order of the circuit court is affirmed.

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