author: Kuhn, J.

text:
    PEOPLE v. DE MEAUX.
    1. Criminal Law — Information—Pleading—Resisting Officer.
    Under Act No. 207, Pub. Acts 1889, as amended (3 Comp. Laws 1915, § 14994), relating to the offense of resisting an officer, the complaint or information need not set up the charge in detail; a general statement, of the nature and validity of the warrant and date of service, place of occurrence and source of the process sufficiently complied with the requirements.
    2. Same — Information—Process, Service of.
    Nor was it essential to the validity of such information to set out in haec verba the process under which the officer was acting if sufficiently described so as to inform the accused what charge he must meet.
    3. Constitutional Law — Justices of the Peace — Cities—Charter of City of Lansing.
    Provisions of the charter of the city of Lansing authorizing the justice of the peace of Lansing township to act as justice in case the city official becomes disabled, disqualified, or absent, were not invalid because in conflict with the home rule provisions of the- Constitution, or for the reason that they impose upon the citizens an officer that they are entitled, in accord with the principle of local self government, to select.
    4. Same — Justices of the Peace — Jurisdiction.
    As the officer already has the power to act as justice in his own jurisdiction, the power of the legislature to give authority to fill the temporary vacancy cannot be questioned: it had merely the effect of enlarging the jurisdiction of the official that was called in as a substitute.
    5. Same — Delegation of Functions.
    Hence, there is no force to the contention that as a constitutional objection a justice cannot delegate his powers to another and the legislature may not authorize him so to do, taking into consideration the fact that the local act did not confer authority upon the justice to delegate his powers to one who was not already vested with juridical functions.
    6. Same — Police—Arrest—Process—Service.
    Where the complaint under which respondent was to have been arrested was placed in the hands of a police officer for service and under the municipal charter it was provided that if the complaint was made by a city officer or private citizen the justice should deliver all process, civil or criminal, to a constable, who should serve it, a policeman, by further provisions of the said local act being empowered to make the arrest (section 213, Act No. 405, Local Acts 1893, as amended), was lawfully acting under the same, in trying to take the respondent into custody. The two sections should be construed as to be both operative.
    7. Criminal Law — Process—Justice.
    The warrant was not invalid because it contained a recital that whereas E. had made a complaint in writing and on oath to me, H., a justice of the Ipeace, etc., when F., a township justice, was sitting in the absence of the regular official, H., because the recital is no essential part of the process, and, in any event, amounted to no more than a harmless irregularity: it appearing, also, in the warrant that the complaint was made on oath and by and before whom.
    8. Same — Absence—Substitute—Courts.
    Where the justice had been absent for about two months on account of illness and, in compliance with a request made by him before he left town, the township justice had been acting as a substitute, and, though the regular justice had returned, he had not gone to his office, and the time was not an unreasonable one to allow him to return and commence work, the process issued by the acting justice was valid.
    9. Same — Evidence—Charge.
    While the court erred in informing the jury that it was admitted that the warrant was sufficient, the fact being disputed, the question of the validity of the warrant was for the court, not the jury, and no prejudice could have resulted.
    10. Same — Lesser Offense — Appeal and Error.
    The court did not commit error in failing to charge that respondent might have been guilty of simple assault, a lesser offense than that of resisting an officer, where the respondent was either guilty of resisting the police, in his own home, or not chargeable with any offense, on the ground that the warrant was bad.
    11. Same — Jury Trial — Verdict—Compelling Jury to Agree.
    The verdict reached by the jury should be the judgment of each individual juror and the jurors should be so instructed. Any attempt to drive them into an agreement which is not freely reached tends to pervert justice. And although the trial judge may, in his discretion, keep the jury out until he is satisfied no agreement can be reached, -it is not proper to keep a jury confined beyond a reasonable period for reaching a verdict.
    12. Same — Trial—Instructions.
    Accordingly, the trial judge committed error after the jury had returned into court for additional instructions, in saying to them that it was their sworn duty to arrive at a verdict and in order to do so they must discuss the matter impartially and fairly, without prejudice, they must do what they could to arrive at a verdict, that was what they were there for., .And.the giving of such instruction, that was prejudicial to respondent, must be held to have resulted in a miscarriage of justice.
    Error to Ingham; Collingwood^ J.
    Submitted October 13, 1916.
    (Docket No. 169.)
    Decided December 21, 1916.
    Theodore De Meaux was convicted of resisting an officer.
    Reversed.

      Grant Fellows, Attorney General, and William C. Brown, Prosecuting Attorney, for the people.

      Cyrenius P. Black and Allan R. Black and Warner & Raudabaugh, for respondent.
   Kuhn, J.

The respondent was convicted under section 11327, 3 Comp. Laws (3 Comp. Laws 1915, § 14994), of having resisted an officer while attempting to serve process. Omitting its formal parts, the information filed was as follows:

“That heretofore, to wit, on the 80th day of October, A. D. 1915, at the city of Lansing and in the county aforesaid, one Theodore De Meaux, late of the city of Lansing, in the county aforesaid, did then and there knowingly obstruct, resist, oppose and assault one Le Roy A. Potter, a duly authorized and appointed police officer of the city of Lansing, in said county of Ingham, known to be such by the said Theodore De Meaux in his the said Le Roy A. Potter’s serving and attempting to serve a warrant for the arrest of said Theodore De Meaux, in that he, the said Theodore De Meaux, did point a revolyer at the person of said Le Roy A. Potter, and did drive and force the said Le Roy A. Potter from his presence and otherwise did knowingly and wilfully obstruct, resist, oppose and assault said Le Roy A. Potter, he, the said Theodore De Meaux, being charged in said warrant with having unlawfully furnished liquor, contrary to the provisions of a certain resolution adopted by the board of supervisors of the said county of Ingham, on the 13th day of April, A. D. 1914; in pursuance of the provisions of Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 1889, as amended, said warrant being issued by lawful authority of one Charles G. Force, a justice of the peace of the township of Lansing, in said county, acting for Charles F. Haight, justice of the peace of the city .of Lansing, having proper jurisdiction to issue said warrant and the said Le Roy A. Potter being then and there as such police officer lawfully engaged in the serving of said warrant, contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Michigan.”

The warrant which it is claimed was in the hands of the officer when resisted was issued upon a complaint taken before one Charles G. -Force, a justice of the peace of the township of Lansing, acting for Charles F. Haight, justice of the peace of the city of Lansing.

Before pleading to the information counsel for respondent made a motion to quash the information and discharge the respondent for various reasons, which motion was denied. The questions involved have been raised by assignments of error, which will be herein discussed.

It is the first contention of respondent’s counsel that the information is insufficient in that it does not adequately set up the offense with which the respondent was charged in the warrant, action under which he is alleged to have resisted. It is claimed that the process under authority of which the officer was acting when resisted should have been fully set up in the information, and that what has been set up is merely the affirmance of a conclusion. Our attention has not been directed to any case decided by this court where the question was involved of how fully the process In a charge of this kind should be set up in the information. The cases of People v. Hamilton, 71 Mich. 340 (38 N. W. 921), and People v. Hubbard, 141 Mich. 96 (104 N. W. 386), are relied upon by counsel for appellant. In both of these cases the defects in the information pointed out by the court related to the failure to describe the conduct of the officer and the acts of resistance and make no mention of the matter of setting up the process under which the officer was acting when resisted. In the Hubbard Case, Mr. Justice McAlvay, in writing the opinion, said:

“No cases are found by us or called to our attention in prosecutions for resisting an officer in the execution of process lawfully issued, where it has been held not necessary to set forth specifically in the information the nature of the process and the doings of the officer under it at the time of the resistance.”

We are of the opinion that it was not necessary to set out in the information in haee verba the process under which the officer was acting as me nature of the process was sufficiently described in the information to advise the respondent what he was called upon to answer. See State v. Roberts, 52 N. H. 492; State v. Cassady, 52 N. H. 500; State v. Perkins, 43 La. Ann. 186 (8 South. 439); Slicker v. State, 13 Ark. 397; McQuoid v. People, 8 Ill. (3 Gilman) 76.

It is next contended that the statute under which the justice of the peace was acting at the time the warrant was issued is unconstitutional. The old charter of the city of Lansing in its provisions relating to a court of the justice of the peace, being a portion of Act No. 405 of the Local Acts of 1893, as amended by Act No. 416, Local Acts 1897, and by Act No. 378, Local Acts 1903, provides:

“In case of the absence, disability or disqualification of the said justice, a justice of the peace of the township of Lansing in said county shall be qualified to act in the place of and for said justice in the performance of any of the duties devolved upon him under this act, and shall, when called upon by said justice or by the circuit judge so act.”

The same provision is also contained in the present charter. It is broadly contended that the legislative designation of a justice of the township of Lansing to act as justice in another municipality is in violation of our Constitution as contravening the important principle of local self-government that no person elected by another constituency can be imposed upon the citizens of Lansing by the legislature, as such would deprive them of their constitutional right to elect their own judicial officer. The office of justice of the peace is a part of the judicial system of this State, and in the exercise of the important functions of this office the persons filling it cannot be said to be performing duties local in character, but must rather be said to be performing duties in behalf of the entire State. Chief Justice Campbell, in the case of People v. Goodwin, 22 Mich. 496, at page 499, said:

“The judicial department of every civilized government is one of the three co-ordinate parts of the sovereignty which acts for the State in expounding the laws and enactments in which the other departments have acted for the people as legislators and the approvers of legislation. It represents only the law by which the people have, by their proper agents, bound themselves. It cannot, therefore, in any of its duties, be said to serve any county, or circuit, or district. Its services are all performed on behalf of the State, as the sovereignty from which all the law emanates. We held in the case of People, ex rel. Schmittdiel, v. Board of Auditors of Wayne County, 13 Mich. 233, that services in the administration of justice were in no proper sense local services.”

Again, in Faulks v. People, 39 Mich. 200, at page 202 (33 Am. Rep. 374), he said:

“In exercising his judicial powers a justice represents the State rather than the township, and his officers may be any constable of the county as well as the sheriff and his juries may be summoned from the county at large. This being so, we can see no reason why the act of 1871 is not valid. It has been held in New York that there is no necessary disability in justices to hold criminal courts beyond their townships (Gurnsey v. Lovell, 9 Wend. [N. Y.] 319; Schroepel v. Taylor, 10 Wend. [N. Y.] 196), and we conceive the matter is left with the legislature.”

It is said that the legislature had no power to delegate to the justice of the peace of the city of Lansing the right to call upon another person to discharge his judicial functions, and the general rule is relied upon that judicial offices must be exercised in person, and that therefore a justice cannot delegate his authority to another. If the act had provided that the justice could call in some person who was not possessed of judicial power and attempted to confer upon the justice of the peace of the city of Lansing the right to delegate such power to one not possessed of it under the Constitution of the State (section 1, article 7, Constitution of 1909), then this criticism would have some force; but here the officer called in already possesses the power and the statute in effect simply enlarged the jurisdiction of the justice of the peace who was called in to act. See Root v. Mayor, 3 Mich. 433; Perrott v. Pierce, 75 Mich. 578 (42 N. W. 1002).

The complaint against the respondent is by a police officer of the city of Lansing, and the warrant was placed in the hands of another police officer for service. The charter of the city of Lansing (section 116) provides that in a case where the complaint is made or process issued at the instance of any city officer or private citizen the said justice shall deliver all processes, civil or criminal, including commitments to the county jail and Detroit House of Correction, to a constable who shall serve the same. Section 213 of the charter with relation to the duties of policemen provides:

“They [policemen] shall have the power to serve any warrant, order or process whatsoever, issued or directed by any justice of the peace, judge, court or officer of the State of Michigan, in the execution of the laws of this State, for the prevention of crimes, and tfc.e punishment of offenders against the police laws and regulations of the city or State.”

It is contended that because of section 116 of the charter this process should have been delivered to a constable, and that the policeman had no power to serve the same. We do not agree with this construction of the provision of the charter, and think that the provision in section 116 is merely directory and should not be so construed as to deprive the sheriff or any officer of the power lawfully conferred upon him to serve process. Clearly under section 213 the policeman had the power to serve the process in question, and such a construction should be given the two sections as to make them both operative.

It is next contended that the warrant was void and no protection to the officer who attempted to serve it because it contained the following recital:

“Whereas, Frank Eurek hath this day made complaint in writing and on oath, to me, Charles F. Haight, a justice of the peace of the city of Lansing in said county. * * *”

It is conceded and established by the record that the complaint was not made to Charles F. Haight, but was made to Justice Charles G. Force, and it is urged by the attorney general in his brief that the mistake in name appearing in the warrant was simply a clerical error and that the recital above set forth is not a necessary part of the warrant. Howell’s Tiffany’s Criminal Law (4th Ed.), pp. 70-78, is cited. After describing the offense the warrant also contained the following recital:

“Whereas on examination on oath of said Frank Eurek and said John Gibbs, a witness, by me, the said justice of the peace, it appears to me said justice that said offense has been committed. * * *
“Given under my hand and seal at the city of Lansing in said county on the 20th day of October, A. D. 1915. Charles G. Force,
.“Justice of the peace, acting for Charles F. Haight, justice of the peace.”

It appears affirmatively from the warrant that the complaint was made on oath. The recital in the introductory part of when, where, and before whom the complaint was made is not, in our opinion, a necessary part of the warrant. Being of the opinion that it was properly issued by one in authority, which appeared on its face, we find no merit in the contention that the clerical error should invalidate the process. See Nolty v. State, 17 Wis. 668; State v. Dula, 100 N. C. 423 (6 S. E. 89).

It' appears that Justice Haight had been absent from the city of Lansing for about two months on account of illness, and in compliance with a request made by him before he left Lansing Mr. Force had been acting during the last twenty days of his absence, and was still acting on October 30, 1915, the date of the issuing of the warrant in this case. Shortly before the warrant was issued Justice Haight returned to the city, but did not reach his office until it was issued, and Justice Force had no knowledge of the return of Justice Haight at the time of its issuance. It is said that, it appearing that Justice Haight was actually in the city of Lansing at that time, the justice who issued it had no jurisdiction to act. We think such a reasonable construction should be given the language in the statute as to make it possible for the justice who has been absent to return to his place of business before it should be said that the person acting in his stead by virtue of the act has no longer any authority to act. It is necessary for the proper and orderly conduct of public affairs that some one should be in authority at all times to take complaints and issue warrants for the violation of the laws of the State and the municipality, and such was undoubtedly the purpose of the statute. It clearly appearing that no unreasonable time elapsed between the actual return of the justice and the issuing of.the warrant, we do not think that the justice who issued it was without jurisdiction.

Other assignments of error relate to the exclusion of evidence and to the charge of the court. We have examined those relating to the exclusion of evidence, and find that no prejudicial error was committed by the court in any of his rulings. In the charge of the court it was said:

“It is admitted that the warrant which Le Roy Potter claimed to have had in his possession on that evening is a good and sufficient warrant.”

This statement to the jury was not justified by the record, as it was not admitted that the warrant was good, but we do not think that it could be said to be prejudicial to the respondent’s case, as the question of whether the warrant was good or bad was for the court to decide, and not for the jury.

It is also contended that error was committed because of the failure of the court to charge that the respondent might have been guilty of simple assault under the charge as laid in the information. No request for such an instruction was made by counsel. Under the proofs in this case the respondent was either guilty of resisting an officer armed with a good and sufficient warrant or he was not guilty of anything. He was in his own home when the effort was made to serve the warrant upon him, and if the officer' was not armed with a good and sufficient warrant he had the right to order him out of the house and to use all the force reasonably necessary to put him out if he did not go. The failure of the court to instruct as to a lesser offense under these circumstances is not. error. See People v. Ezzo, 104 Mich. 341 (62 N. W. 407).

After the court had instructed the jury and they had been out for some time they returned into court, and the following occurred:

“The Court: Gentlemen of the jury, have you arrived at a verdict?
“The Foreman: We have not.
“The Court: Have you been attempting to arrive at a verdict?
“The Foreman: Yes.
“The Court: When you are placed on the jury, it is your sworn duty to arrive at a verdict. In order to arrive at a verdict you have got to discuss the matter impartially and fairly without prejudice, but you must do what you can to arrive at a verdict. That is what you are here for. Is there any portion of the law that you do not understand? (Several jurors answer “No.”)
“The Court: If not, I will send you back to your room with the instruction that you ought to arrive at a verdict.”

It is earnestly contended that the statement of the court to the jury that it was their sworn duty to arrive at a verdict was a clear misstatement of the law, and was therefore necessarily prejudicial. It is contended by the attorney general that the first sentence of the court’s advice to the jury standing alone might be subject to criticism, but that what followed clearly defined the duty of the jury. In the case of Pierce v. Pierce, 38 Mich. 412, it is said:

“Jury trials can never be safe unless the verdict is made as far as possible the unbiased and free conclusion of every juror. Every attempt to drive men into an agreement which they would not have reached freely is a perversion of justice. It may be discretionary with the trial judge to keep a jury out until he is satisfied an honest and free agreement is not to be expected. But there is no legal propriety in keeping a jury confined unreasonably after they have come to an agreement and a verdict obtained by the suggestion of such an alternative is a verdict obtained by what it would be hard to distinguish from duress. It may be that the court is not bound to be present continually on the chances of an agreement; but any unusual and prolonged delay is not to be favored without giving an opportunity to find a sealed verdict.”

That the verdict reached by the jury should be and must be each individual juror’s own verdict, the result of his own convictions, is well established in our jurisprudence. No such instructions were given the jury. See People v. Engle, 118 Mich. 287 (76 N. W. 502). We think that the charge of the court telling the jury that it was their sworn duty to arrive at a verdict was prejudicial to respondent’s rights. The giving of an instruction to a jury which is prejudicial to respondent must be said to have resulted in a miscarriage of justice. See People v. Humphrey, ante, 10 (160 N. W. 445).

For this reason the verdict must be set aside, and a new trial granted.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    NELSON v. BREITENWISCHER.
    1. Taxation — Land Contract — Lien.
    A land contract, executory in character, reserving to the vendor the legal title, creates a lien on the real estate, and is subject to the mortgage tax law. 1 Comp. Laws 1915, § 4268 et seq.

    2. Constitutional Law — Real Property — Vendor and Purchaser.
    The taxation of mortgages and contracts for the purchase and sale of real property each to its full value is not in violation of the Constitution on the ground that the property bears a double tax.
    3. Equity — Practice—Motion to Dismiss.
    Appellant was not premature in moving to dismiss and it was not essential to wait before raising the question until the contract in question was offered in evidence, section 8 of the act providing in terms that no contract thereunder shall be enforced until the tax be paid as provided in the statute. The filing of the bill was clearly an effort to enforce which had commenced when the motion to dismiss made by appellant was filed.

      Appeal from Montcalm; Davis, J.
    Submitted October 11, 1916.
    (Docket No. 136.)
    Decided December 21, 1916.
    Bill by Clinton Nelson against Louis F. Breitenwischer and another for the foreclosure of a land contract. From an order overruling a motion to dismiss the bill, defendants appeal.
    Reversed.
    L. C. Palmer, for complainant.

      Seymour PI. Person, for defendants.
   Kuhn, J.

The plaintiff’s bill was filed to foreclose a land contract dated June 15, 1915, for default in payments; it appearing from the averments of the bill that the plaintiff is the assignee of the vendor of a 480-acre farm in Montcalm county of this State. The farm was originally owned by James Walsh and wife and was by them sold on a land contract to the defendants for $35,000. Of this amount $18,300 was paid down, and the balance was to be paid $2,000 in 30 days, $2,000 in 60 days, and $3,200 in 90 days. Upon the payment of these amounts a deed was to be given subject to a mortgage of $9,500. On the 12th day of November, 1915, the Walshes deeded the land and assigned the contract to the plaintiff.

Defendants, upon appearing, made a motion to dismiss the bill, in accordance with section 4 of chapter 14 of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12456), because the tax provided for in Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268), had not been paid. The bill as filed did not allege the payment of the tax, and a copy of the contract which was annexed to the bill and made a part of it contained no certificate of the county treasurer of the amount secured thereby and the amount of the tax received by him as is provided for by the act. An affidavit of the county treasurer showing that the tax had not been paid was filed with the motion and was not disputed. Hearing was had upon the record thus made supporting the theory that the tax had not been paid. The motion was overruled by the trial court, and leave to appeal from the order overruling the motion was granted in accordance with the provisions of section 18, chap. 50, of the judicature act (3 Comp. Laws 1915, § 13753).

Section 1 of the act in question provides as follows:

“For the purposes of this act all indebtedness secured by liens upon real property shall constitute that class of credit upon which this act imposes a specific tax. The word ‘mortgage’ as used herein shall include every mortgage or other instrument by which a lien is created over or imposed upon real property, notwithstanding it may also be a lien upon other property, or there may be other security for the debt, and shall also include executory contracts for the sale of real property, and deeds or other instruments that are given to secure debts.”

Section 8 is, in part, as follows:

“No mortgage or land contract, which is subject to the tax imposed by this act shall be released, enforced, discharged of record or received in evidence in any action or proceeding at law or in equity, nor shall any asssignment of or agreement extending any such mortgage or land contract be recorded until the tax imposed thereon by this act shall have been paid as in this act provided. * * *”

Counsel in support of the action of the trial court argue that it was not the intention of the legislature to assess this class of contracts, and that it should not be said that such a contract is in any sense security for the payment of the debt. We cannot agree with this construction of the statute, because the language of section 1 is explicit that it should cover all executory contracts for the sale of real property which are given to secure debts. While the plaintiffs assignor retained the legal title to the property, he passed the equitable title by giving the contract, and there is no escape from the conclusion that the contract itself created a lien upon the property which, in our opinion, brings it for taxation purposes squarely within the provisions of the act in question.

It is further argued that this conclusion results in double taxation, and that therefore it is inequitable, unconstitutional, and void. This court, in the case of Stumpf v. Storz, 156 Mich. 228 (120 N. W. 618, 132 Am. St. Rep. 521), held that the taxation of mortgages and also of the real estate bound by them to its full value is not invalid as double taxation. An interesting review of the authorities on this subject is found in 23 L. R. A. (N. S.) 152, in the note to this case.

It is next contended that the appellants were premature in moving to dismiss, and that they should have waited, before raising this question, until the contract in question was offered in evidence. Section 8 of the statute in terms provides that no land contract subject to the act shall be enforced until the tax imposed thereon shall be paid as in the act provided. The filing of the bill was clearly an effort to enforce the contract, and, when the motion to dismiss the bill was filed, the process of enforcement of the contract had been begun. We think that it was entirely proper to raise the question immediately by a motion, because certainly it would be idle for the court to inquire into jfie facts as to a contract which it-has no power to enforce.

We are of the opinion that the motion should have been granted or an alternative order have been entered dismissing the bill, unless the tax provided for by the act be paid within fifteen days from the date of the order. The case will be remanded to the circuit court m chancery, and, if plaintiff exercises his option to pay the tax as suggested, 15 days will be allowed defendants to file an answer. Costs will be awarded to the appellants.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. - Person, J., did not sit.


text:
      In re CUTTER’S ESTATE. SIMMER v. CUTTER'S ESTATE.
    1. Appeal and Error — Exceptions—Trial—Non-Jury Trial.
    In proceedings for the allowance of a claim against a deeedent’s estate, findings of the trial court disallowing the claim reviewed under the rule that, 'unless such findings are against the overwhelming weight of the evidence, the judgment will not be disturbed, and heW, to warrant the determination of the court that the transaction constituted part of an exchange of properties, and included the transfer of a liquor license, being for that reason illegal.
    2. Contracts — intoxicating Liquors — License — Exchange — Violation op Statute — Illegality.
    An 'agreement for an exchange that involved the transfer and use of a liquor license by the one taking over the business was illegal and the court will leave the parties where it found them in an action on a promissory note of the transferee.
    Error to Kent; Perkins, J.
    Submitted October 17, 1916.
    (Docket No. 56.)
    Decided December 21, 1916.

      Albert Simmer presented a claim against the estate of Charles Cutter, deceased, for the amount of a promissory note. The claim was allowed in the probate court, and Linnie Cutter, executrix, appealed to the circuit court. Judgment for defendant. Claimant brings error.
    Affirmed.

      Hatch, McAllister & Raymond, for appellant.

      Grant Sims, for appellee.
   Kuhn, J.

In July, 1913, the claimant was the owner of a hotel building, furniture, and fixtures therein, and the bar and stock of liquors used in connection therewith, a hotel barn, three horses, buggies, blankets, and harness, and a blacksmith shop, all situated in Berlin, Ottawa county, Mich. The real estate upon which these buildings were situated had been purchased under a land contract, and the livery stable and blacksmith shop were about 10 feet apart and across the street from the hotel and saloon. Charles Cutter, the deceased, was at that time the owner of a saloon, stock of liquors, and fixtures situated in the city of Grand Rapids, Mich.

Claimant says that in July of that year negotiations were entered into for a trade of their respective properties, by the terms of which he was to turn over his hotel and bar, furniture, and fixtures, and stock of liquor, and also his livery barn, harness, wagons, buggies, etc., to Cutter, and assign to him the contract which he held covering the real estate; and in payment therefor Cutter was to turn over to Simmer his saloon and stock of liquor, furniture, and fixtures, situated in Grand Rapids, Mich., and pay to Simmer an additional sum of $1,000 cash; that this trade was carried out, and Cutter moved into the hotel at Berlin and took possession of the property there, and that he moved to Grand Rapids and took possession of the property which he received. It is further claimed that about two weeks after this trade was consummated negotiations were commenced for the sale of the blacksmith shop, and that an offer was made to Cutter to trade the same for a secondhand automobile and an additional $500; that this latter trade was a distinct and separate transaction from the first, and was concluded on August 26, 1913, when Simmer accepted the note of Cutter in payment of the $500. The note was not paid at its maturity, and, Cutter having died, it was presented as a claim against his estate. Its allowance before the commissioners on claims was contested, on the ground that the note was given for an illegal transaction, in that in the exchange of the saloons an arrangement had been entered into for the use by the claimant of a liquor license which had also been unlawfully used by the deceased. The claim was allowed by the commissioners, and an appeal was taken to the circuit court, where the case was tried before the court without a jury, and a judgment there rendered disallowing the claim. The findings of the court are as follows:

“I. I am satisfied that the exchange of properties in this case was a single transaction.
“II. That claimant, before exchanging saloons with the deceased, arranged for the use of the license which the deceased had been unlawfully using, is established from his own testimony:
‘Q. Ho [the deceased] had been operating that saloon?
‘A. Yes, sir.
‘Q. Under whose license was he operating?
‘A. Mr. Dunn’s license.
“ ‘Q. George Dunn’s?
‘A. Yes, sir; George Dunn’s.
‘Q. When you left your place of business in Berlin, did you leave your retail liquor card hanging on the wall in the Berlin saloon?
‘A. Yes, sir; I did.
‘Q. And before you closed the trade with Mr. Cutter did you ask Mr. Dunn if he would allow you to use his license here in this city?
“ ‘A. Yes, sir.
‘Q. If you traded, and Mr. Dunn told you he would?
‘A. Yes, sir; I asked him if I could run under his until I sold it. I didn’t want it any longer.
‘Q. Yes; and he told you you could, and you operated the saloon under the license of George Dunn from the time you came here until you sold it to Gallagher?
‘A. Well, sir, I was running it, told Mr. Dunn I would run it, for him until I sold it.
‘“Q. Did Mr. Dunn own the liquors and the Stuff in there?
‘A. Well, no; he didn’t own the liquors.
‘Q. Well, then, how were you operating for Dunn? That was your stock of goods which you had traded to Cutter; you were operating that place yourself, weren’t you?
‘A. Yes.
..‘“Q. Until you sold it?
“ ‘A. Yes, sir.
‘Q. And operating it under that Dunn license?
‘A. Yes.
“ ‘Q. Yes, and you had a stock of liquors?
. “ ‘A. Had a stock of liquor.
‘Q. You traded him your saloon and your fixtures.
“ ‘A. Had a stock of liquor there.
‘Q. And you didn’t pay any attention to having your license hanging on the wall there, didn’t think it amounted to anything?
‘A. I didn’t think anything about it.
‘Q. You knew it did amount to something to have Dunn’s license on the wall here if you operated here?
‘A. Yes, sir.
‘Q. As a matter of fact, didn’t you say that you would trade your license if he would trade Dunn’s license to you here?
‘A. There wasn’t anything said about the license there.
‘Q. And then you operated the saloon here until December under Dunn’s license?
‘A. Yes, sir.’
“III. That the deceased before the exchange operated his saloon in Grand Rapids under the Dunn license, and that after the exchange he operated the saloon in Berlin under the Simmer license, are undisputed facts in the case.
“IV. That it was mutually understood by the parties that each could use the license of the other, or the license that the other had been operating under, after the exchange, is fairly established by a preponderance of the evidence in this case.
“V. The item of $60 for a gasoline engine, subsequently sold to the deceased, is sufficiently established by claimant.
“Conclusions of Law.
“1. The transaction relating to the exchange of saloons and other property in connection therewith is void, and no recovery can be had upon the note in controversy.
“2. Recovery can be had for the gasoline engine so sold and delivered, $60 and interest at 5 per cent.”
It is stated by the appellant that, the questions involved are as follows:
“(1) Was the note of August 26, 1913, given as part of the consideration for the sale and transfer of the blacksmith shop?
“(2) Is the finding of the court, that the note was given for an illegal consideration, against the clear weight of evidence?”
In the judicature act (Act No. 314, Pub. Acts 1915, chap. 18, § 15 [3 Comp. Laws 1915, § 12587]), the following provision with reference to cases tried before a court without a jury is found:
“Sec. 15. In such cases, either party may file exceptions to the findings of facts, that such findings are against the clear weight of evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the Supreme Court.”

For the purpose of availing himself of the foregoing statute exceptions were duly filed by the claimant to each of the findings of fact made by the court on the specific ground that such findings were against the clear weight of the evidence. In the construction of this new provision in the judicature act we are of the opinion that we should be governed by the same rule which we have announced with reference to reviewing the decision of a trial judge in refusing to grant a motion for a new trial on the ground that it was against the great weight of the evidence. In the case of Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), it was said:

“The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial. This rule has been repeatedly stated by us” — citing many cases.

See, also, People v. Sartori, 168 Mich. 308 (134 N. W. 200); Reed v. McCready, 170 Mich. 532 (136 N. W. 488); Eesley Light & Power Co. v. Commonwealth Power Co., 172 Mich. 78 (137 N. W. 663); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592); Druck v. Antrim Lime Co., 177 Mich. 364 (143 N. W. 59); McGary v. Buick Motor Co., 182 Mich. 345 (148 N. W. 722); Darling v. Railway Co., 184 Mich. 607 (151 N. W. 701); Walsh v. Railway Co., 185 Mich. 177 (151 N. W. 754); Silverstone v. Assurance Corporation, 187 Mich. 333 (153 N. W. 802); Ponke v. Railway, 189 Mich. 74 (155 N. W. 485).

■In the review of this record we are not satisfied that the findings of the circuit judge were so clearly against the weight of the evidence as to warrant us in disturbing his conclusion. As we have, often said, the trial judge had the advantage of hearing the witnesses testify, and has a better opportunity to judge of their credibility than the appellate court. The entire transaction occurred in August of that year, and in the assignment of the land contract which covered all the land no reservation was made of the land upon which the blacksmith shop stood. Mr. Ordway, the real estate .agent who brought the parties together and received a commission for his services, testified that at the time the parties were negotiating and before the deal was closed “they were talking also about the blacksmith shop.” The court in making inquiry as to the assignment of the land contract asked certain questions with reference thereto. The questions and their answers were as follows:

“TJie Court: And that covered the blacksmith shop, didn’t it, that assignment?
“A. It would have covered it, unless we did not make the other deal here. He took the blacksmith shop over later on, because he wanted to think over it, so we left it all in one.
“The Court: You mean you did not make the assignment until after he had concluded to take the blacksmith shop?
“A. Well, let us see, I can’t just — I can’t just remember how that was now.
“The Court: Well, you never made but the one assignment of the land contract, did you?
“A. Seems to me we did, but I can’t recall that now.”

We do not think that the testimony supporting claimant’s contention is so clear and convincing as to warrant us in setting aside the judge’s finding with reference thereto.

Neither are we satisfied that the finding of the court with reference to the illegality of the transaction is unwarranted. It is a fair inference from the testimony that it was mutually understood by the parties that each could use the license of the other, or the license that the other had been operating under, after the exchange. That part of the claimant’s testimony incorporated in the 'findings clearly shows his purpose to use a license illegally. That the law will not aid either party to an illegal agreement and leaves the parties where it finds them is well established. See Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649 (90 N. W. 676); Detroit Salt Co. v. National Salt Co., 134 Mich. 103 (96 N. W. 1); Fisher v. Transportation Co., 136 Mich. 218 (98 N. W. 1012, 112 Am. St. Rep. 358); Bryant v. Wilcox, 137 Mich. 669 (100 N. W. 918); Walhier v. Weber, 142 Mich. 322 (105 N. W. 772); Dierkes v. Wideman, 143 Mich. 181 (106 N. W. 735); Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721).

Being of the opinion that, as upon this record, we should not disturb the findings of the trial judge, either as to the facts or the law, we affirm the judgment.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    KLUG v. AUDITOR GENERAL.
    1. Plats — Municipal Corporations — Mandamus — Approval by Auditor General.
    Mandamus will not lie to compel the auditor general to approve a plat of township land, approved only by the township board, where the statute (sections 3372, 3373, 1 Comp. Laws, as amended by Act No. 251, Pub. Acts 1915, 1 Comp. Laws 1915, §§ 3350, 3351) required the approval of the board of county auditors as well as that of the township board.
    2. Same — Statutes—Construction—Intent.
    Where the subjects of inquiry committed to the county board by the statute are not among the duties of either the township board or the auditor general, held, a reasonable construction of the statute to be the legislative intention to have all plats subjected to the same measure of scrutiny and investigation, and to require the approval of the county board.
    3. Statutes — Construction—Legislative Intention.
    While punctuation and rules of grammatical construction have been applied for the purpose of ascertaining the meaning of a statute, nevertheless they must yield to a clearly disclosed legislative intention, as that is the real . test to be applied.
    Mandamus by William H. Klug against Oramel B. Fuller, auditor general, to require respondent to approve a plat under sections 3350, 3351, 1 Comp. Laws 1915.
    Submitted November 2, 1916.
    (Calendar No. 27,563.)
    Writ denied December 21, 1916.

      Charles Bowles, for relator.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General, for respondent.
   Kuhn, J.

Mandamus is sought to compel the respondent to approve a plat of certain land situated in the township of I-Iamtramck, Wayne county. The petition alleges that the plat was executed in due form, and that the treasurer of the county had attached thereto his certificate to the effect that all taxes for the five years preceding have been paid, and that the township board approved the plat; but, when submitted to the respondent, he declined to approve it, assigning as a reason for his action that it had not been approved by the board of auditors of Wayne county.

The proceedings in question are governed by sections 3372, '3373, of the Compiled Laws of 1897, as amended by Act No. 251 of the Public Acts of 1915 (1 Comp. Laws 1915, §§ 3350, 3351), and so much of the first section is here set forth as is necessary for an understanding of the question involved.

“Before such map or plat shall be approved by the auditor general, and before such map or plat shall be recorded by the register of deeds, the proprietor or proprietors thereof shall cause to be attached to said map or plat a certificate of approval from the township board or the city council, or the board of commissioners in municipalities having a commission form of government, or the village council having jurisdiction over the land so described in the said map or plat: Provided, that if said township board, city council or village council refuse to approve said map or plat it shall notify in writing, within five days, the proprietor or proprietors, or their agents, of such non-approval, giving its reasons therefor, and such map or plat before being approved by the auditor general and before being recorded as aforesaid, shall be delivered at the office of the county clerk and by him presented to a board consisting of the judge of probate, county clerk and county treasurer of, the county in which the lands so described in said map or plat are situated, or to the boards of county auditors in counties having such boards. It shall be the duty of said board whenever any map or plat is submitted to them to carefully examine the same for the purpose of determining whether or not the caption of said map or plat conflicts in any way with the-title or caption of any other map or plat previously recorded in the office of the register of deeds of said county, and also for *the purpose of ascertaining whether or not the streets and alleys in such map or plat conform, in their opinion, to the streets and alleys of any adjoining map or plat heretofore recorded; and are so named that no name previously in use in the same city or village shall be made use of except in continuing a street or alley: Provided, that nothing herein contained shall require the dedication of any other or further streets than those shown on the plat; and for the purpose of determining whether or not the land included within the limits of said map or .plat is suitable for platting purposes; and if, upon examination of said map or plat a majority of said board shall find that the title or caption does not conflict with that of any other map or plat, not vacated, recorded in- such county, and the streets and alleys do conform to those of any adjoining map or plat theretofore recorded; and are so named that no name previously in use in the same city or village shall be made use of except in continuing a street or alley; and further, that the land included in said map or plat is suitable for platting purposes, and that said map or plat conforms to the requirements of this act, the said board shall indorse its approval thereon by the signatures of a majority of said board, but shall otherwise reject the same. And if the map or plat is not approved, and rejected for not being in conformity with the requirements of this act, said board shall notify, in writing, within five days, the proprietor or proprietors, or their agents, of such rejection or nonapproval, giving its reasons therefor.”

It is the claim of the petitioner that, under the provisions of this act, if a plat of township property has been approved by the township board, it is then unnecessary for the board of county auditors to pass upon said plat, and that, if open to no other objection, it must be accepted and approved by the auditor general and placed on record in his office. A mere reading of the section of the statute discloses that it is rather loosely drawn, and that the proviso in the portion of the statute before quoted is ambiguous. In construing it the question is, How much of the ensuing provision should be regarded as embraced within such proviso? Does it extend to the comma following the words “giving its reasons therefor,” or does it include all of the language after the proviso before quoted? It is a fundamental rule of construction, and one well established by this court, that in construing the terms of a statute the real test to be applied is, What was the intention of the legislature? If we are able to ascertain from a reading of the entire statute what such intention was, such a construction should be given the statute as to be in harmony therewith. City of Detroit v. Chaffee, 70 Mich. 80 (37 N. W. 882); Attorney General v. Plank Road Co., 2 Mich. 138; Parsons v. Wayne Circuit Judge, 37 Mich. 287; In re Lam brecht, 137 Mich. 450 (100 N. W. 606); People v. Schoenberg, 161 Mich. 88 (125 N. W. 779); Rohde v. Wayne Circuit Judge, 168 Mich. 683, 686 (131 N. W. 523, 135 N. W. 457). Relator’s position is based largely upon the punctuation and upon rules of grammatical construction, and while these rules have been applied for the purpose of ascertaining the meaning of a statute, nevertheless they must yield to a clearly disclosed legislative intention. 36 Cyc. p. 1117.

The attorney general, in his brief for the respondent, has gone into the legislative history of this section to fortify his position as to the intention of the legislature in passing the act, and, while this is proper arid strengthens his position, we think that the reading: of the act itself is convincing that the construction placed thereon by the respondent is in accordance with, the legislative intention. To interpret the proviso as requiring submission to the county board only when approval is refused by the township board or municipal council would be repugnant to the specific language immediately following the proviso. Certain tests are prescribed by the legislature to which the map or plat must conform before the county board may approve the same. The streets and alleys must conform to the streets and alleys of the adjoining plats, and names previously used in the city or village may not be employed except in continuing a street. The title or caption must accord to the plat and be not inconsistent with that of any other plat recorded in the county, and the question is also to be passed upon whether or not the land is suitable for platting purposes. These specific subjects of inquiry committed to the county board are not mentioned in defining the duties of either the township board, the municipal council, or the auditor general. To give the statute the construction contended for by relator, viz., to require the submission of the plat to the county board only when the local board refuses its approval, would result in having the tests suggested in the statute only applied when the local board has declined to approve the plat. Such surely could not have been the legislative intention, and the only reasonable construction to give the statute is that it was rather the legislative intention to have all plats subjected to the same measure of scrutiny and investigation. This is the only construction which, in our opinion, permits an adequate remedy for the condition which the legislature unquestionably sought to reach and change.

The writ is denied, with costs to the respondent.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    WEATHERBY v. KENT CIRCUIT JUDGE.
    2. Intoxicating Liquors — Parties — Principal and Surety — Right of Principal to Intervene — Statutes.
    In a civil-damage action against a surety company on the bond of a saloon keeper for unlawful sales of liquor to plaintiff’s husband, under 2 Comp. Laws 1915, § 7050, the saloon keeper, who had agreed to indemnify the surety against loss, was properly allowed to intervene, as under the provisions of the judicature act (Act No. 314, Pub. Acts 1915, chap. 12, § 11) he had an-“interest” in the litigation.
    2. Parties — Interveners—Defenses.
    While, under the statute, the intervener must recognize the propriety of the main proceeding by accepting the record as he finds it, without questioning the regularity of the proceedings, he is not precluded from attempting to defeat plaintiff’s recovery.

      3. Mandamus — Appeal and Error.
    An order allowing intervention, being part of tbe record and subject to review by writ of error, mandamus is not tbe proper remedy.
    Mandamus by Nellie Weatherby against Willis B. Perkins, circuit judge of Kent county, to require respondent to vacate an order allowing an intervention in an action under the civil-damage act.
    Submitted September 19, 1916.
    (Calendar No. 27,326.)
    Writ denied December 21, 1916.

      Rodgers & Rodgers, for relator.

      McKenna, Herman & Smolenski, for respondent.
    The relator commenced her suit by declaration against the Michigan Bonding & Surety Company, alleging that said company was surety on the saloon bond of one Pawloski during the year 1915, and also ■on the saloon bond of one Breuer during the same period; further, that her husband was illegally furnished with liquor in the saloons owned by Pawloski and Breuer from September 15 to December 15, 1915. The surety company filed a plea of the general issue, and Breuer filed a petition, alleging that he had agreed to indemnify the said company against loss by reason of its becoihing surety on his saloon bond, and that because of said agreement he would be compelled to pay it any money that it might be compelled to pay because of said suit; that he is the principal in said bond, and that the declaration alleges that he sold liquor illegally to the husband of said complainant, and that therefore he is interested in said litigation and is a proper party thereto. This petition came on to be heard before the Hon. Willis B. Perkins, circuit judge, who made an order that said Breuer be allowed to intervene, and made him a joint defendant in said cause and fixed the time in which the pleadings should be served upon the attorneys for said Breuer and also the time in which he should plead to the declaration. A motion was thereupon made by counsel for the plaintiff, asking the court to set aside the said order permitting the intervention of Breuer, which was denied. Mandamus is now sought to require the trial judge to vacate and set aside the order allowing intervention.
   Kuhn, J.

(after stating the facts). Section 11, chap. 12, of Act No. 314 of the Public Acts of 1915, known as the judicature act (3 Comp. Laws 1915, § 12362), provides as follows:

“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”

Section 13 (■§ 12364) provides:

“No action at law or in equity shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require.”

It is contended that these provisions of this act fully justify the act of the trial judge in permitting intervention. A study of the history of section 11 discloses that it was apparently taken from the Federal equity rule No. 37 (198 Fed. xxviii, 115 C. C. A. xxviii), which reads:

“* * * Any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be iñ subordination to, and in recognition of, the propriety of the main proceeding.”

Our statute applies this Federal equity rule to cases in law as well as to cases in equity, but in all other respects they are identical. The principle of intervention was well established by the Federal equity practice (Lombard Investment Co. v. Manufacturing Co., 74 Fed. 325, 327; Forbes v. Railroad Co., 2 Woods, 334 [Fed. Cas. No. 4,926]), but was incorporated in the rules as a specific warning that one cannot, by intervening, ask affirmative relief and in the same breath attempt to repudiate the power of the court to proceed with the cause upon which the intervention rests. 47 Am. Law Rev. p. 246. See, also, note in 29 Am. & Eng. Ann. Cas. p. 1031.

In construing the rule and referring to the word “interest” therein used, the court, in Tully v. Triangle Film Corporation, 229 Fed. 297, said:

“Of course, the interest referred to in the rule means an interest in law. It cannot mean anything else, and certainly cannot mean a possible injury for which a person has not retained for himself any right or redress.”

It is the contention of the relator that the intervention of Breuer as a joint defendant in the cause is without authority or precedent, and the following provision in our statute, being a part of section 5074, 2 How. Stat. (2d Ed.), 2 Comp. Laws 1915, § 7050, is relied upon:

“And the principal and sureties to the bond hereinbefore mentioned, shall be liable severally and jointly with the person or persons so selling, giving, or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid, and in an action provided for in this section, the plaintiff shall have a right to recover actual and exemplary damages.”

The case of Scahill v. Indemnity Co., 157 Mich. 310 (122 N. W. 78), is also cited. In this case this court, in construing the statute, upheld the right of the plaintiff to bring suit against the surety alone. No criticism is made of this decision by counsel for respondent, but it is urged that the same question is not involved in that case as is now before us. The parties who sold the liquor did not ask to be joined as defendants, and did not defend. The question that was raised by the defendant surety company was that the case could not be maintained against it alone, and the court in passing upon this question simply decided that the plaintiff had a right to commence the suit in the way she did because the language in the statute clearly gave her that right. Counsel say that in this case, the plaintiff having elected to commence suit against the surety alone, the principal in the bond, who is and ought to be the actual defendant, comes in and petitions the court to be granted his rights; that is, the right to be made a defendant. The question is, Should he be given the opportunity to defend an action in which he has a clear legal interest, having obligated himself to pay whatever judgment is rendered against him to the defendant, the Michigan Bonding & Surety Company?

The claim is also urged that the intervention of Mr. Breuer was not in recognition of the propriety of the main proceeding because he is seeking to defeat plaintiff’s recovery. This cannot be the meaning that the legislature placed upon this language, for, as counsel for respondent say in their brief,

“This construction would, in effect, say to a proposed defendant, you may be joined as a defendant if you will come in and plead guilty, if you have no defense, or if you have a defense, if you will agree not to assert it, we will join you, but, on the other hand, if you are coming in here in good faith, if you- have a good defense and intend to use it, you cannot be joined as a defendant because that would not be in recognition of the propriety of the main proceeding. * * *”

We are of the opinion that the same construction should be given to this language that was given to the Federal equity rule above referred to. In 11 Encyclopedia of Pleading & Practice, pages 509, 510, it is said:

“An intervener in a suit between other parties must accept such suit as he finds it, and is bound by the record of the case at the time of his intervention. _ He cannot raise an issue as to whether the proceedings are regular, nor can he plead exceptions having for their object the dismissal of the action. He cannot raise new issues in the suit, nor insist upon a change in the form of the proceedings. An intervener cannot exercise any rights which are limited to the parties to the action.”

An interesting article on intervention under the new judicature act of this State will be found in 14 Michigan Law Review, p. 451.

Being of the opinion that Mr. Breuer, the proposed intervener, has a direct interest in the subject involved in this suit and in any judgment that may be rendered, and being further satisfied that it is the design of the provision of the judicature act under discussion to prevent a multiplicity of suits, we are of the opinion that the trial judge acted properly in granting the prayer of the petition and in permitting intervention.

We are also of the opinion that the order, allowing an amendment so as to join Mr. Breuer as a party defendant, being a part of the record, is subject to review by writ of error, and that therefore mandamus is not the proper remedy. The intervention of this new defendant, if erroneously allowed, would not, in our opinion, produce such an immediate injury or mischief as to warrant issuing this discretionary writ. See Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1), in which case the decisions on this point are reviewed.

The writ is denied, with costs to the respondent.

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


text:
    DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO. v. BOOMER.
    1. Contribution — Joint Tortfeasors.
    As between actual joint tortfeasors the law will not enforce contribution or indemnity.
    2. Same — Indemnity.
    The exception to the general rule, that whenever the wrongful act of one person results in liability being imposed on another the latter may have indemnity from the person actually guilty of the wrong, is not applicable in favor of one guilty of active negligence.
    3. Same.
    So, where plaintiff railroad company was guilty of active negligence in switching cars resulting in personal injuries for which a judgment was obtained against it, an action for contribution could not be maintained against defendant, although he was also guilty of negligence contributing to the injury in leaving sand upon the track, contrary to the provisions of a contract relied upon by plaintiff.
    • Error to Wayne; Codd, J.
    Submitted October 17, 1916.
    (Docket No. 157.)
    Decided December 21, 1916.
    Assumpsit by the Detroit, Grand Haven & Milwaukee Railway Company against Isaac Boomer for the amount of a judgment and costs. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Harrison Geer, for appellant.

      George H. Prentis (Prentis & Mulford, of counsel), for appellee.
    This suit was brought against the defendant to recover the amount of a judgment, costs, and interest, amounting to the sum of $1,717.46, paid by the plaintiff as the result of a suit brought by one Casimir Glappa against it. See Glappa v. Railroad Co., 179 Mich. 76 (146 N. W. 134).
    It appears that the defendant is engaged in the builders’ supply business, having his yard nearly east of and adjoining the plaintiff railroad company’s right of way between Forest and Garfield avenues in the city of Detroit. This suit is based on a contract entered into between the plaintiff and defendant for the construction of a private side track on the property owned by Boomer. The two material paragraphs of the contract relied upon are as follows:
    “Par. 10. The contractor shall protect the railway off the company from cattle and other animals escaping thereupon from such portion of the said siding as may be outside of the lands of the company and shall at all times keep the whole of the said siding clear of snow, ice and obstructions.”
    “Par. 21. The contractor shall keep a distance of six feet from each side of the said siding, free and clear of all obstructions, and forthwith remove any obstructions which may be within such limit.
    “This shall not apply to a certain telegraph pole which is allowed to be within said distance.”
    On October 20, 1910, while the railroad company’s servants were switching cars on the siding, one of the cars in the train jumped the track, injuring Glappa, who was working on a wagon alongside the track. He brought suit against the plaintiff and defendant jointly, but upon the hearing after the proofs were taken he was compelled to elect against which defendant he would proceed. He chose to proceed against the railroad company and recovered the judgment above referred to.
    On the present trial, after all the proofs were in, both sides moved for a directed verdict, and the learned trial judge thereupon directed a verdict of no cause of action on the ground that the plaintiff and defendant were joint tortfeasors and the one could not recover against the other. Thé plaintiff and appellant contends that this is error, and that a verdict should have been directed for the plaintiff as requested.
   Kuhn, J.

(after stating the facts). In the case determining the liability of the plaintiff at the suit of Glappa, it was contended by the railroad company that there was no negligence shown on its part. Mr. Justice Brooke, in writing the opinion of this court, in discussing this question, said:

“It does not, however, therefore necessarily follow that the defendant railway was free from negligence. The mere presence of the sand upon the track was no menace to the plaintiff. If the cars had not been moved, the plaintiff would not have been injured. It e was the alleged negligent movement of the cars overt the accumulated sand which caused the injury.” S

This determines actionable negligence on the part of the plaintiff and was the active negligence which was directly responsible for Glappa’s injuries. The railroad company, in order to sustain its claim in this action, contends that Boomer was negligent. We think it thus clearly appears and is established that the plaintiff and defendant were joint tortfeasors.

As between actual joint tortfeasors the law will not ,; enforce contribution or indemnity. This exception to the general rule, that whenever the wrongful act of l one person results in liability being imposed on an- 1 other the latter may have indemnity from the person j actually guilty of the wrong, has recently had the consideration of this court in the case of Township of Hart v. Noret, 191 Mich. 427 (158 N. W. 17). In this opinion the subject was discussed and a great many cases cited, and that class of cases are especially referred to which are exceptions to the rule that where parties are in pari delicto the one cannot recover]] against the other. We do not think, however, that thej/ case before us comes within any of the exceptions, as we have determined in the previous case that the rail- ^ road company was actively negligent, and therefore conclude that the circuit judge was correct in holding that no recovery could be had by the plaintiff against the defendant and directing a verdict accordingly.

The judgment is affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    COPE v. MERRIAM.
    1. Homesteads — Valuation—Leasing Without Consent of Wife.
    Where the husband, without- the consent of the wife, changed a barn into a dwelling on the back 42 feet of a city lot, used as a homestead, and rented it, the total value of the premises being less than ?1,500, such action did not change the character of the whole lot as a homestead. Constitution, Art. xiv, § 2.
    2. Same — Fraudulent Conveyances — Exemptions.
    The whole lot being exempt as a homestead, a subsequent conveyance of the 42 feet was not void as to creditors.
    Appeal from Ionia; Davis, J.
    Submitted October 5, 1916.
    (Docket No. 52.)
    Decided December 21, 1916.
    Bill in aid of execution by Charles S. Cope against Almon W. Merriam and others. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      George E. Nichols, for complainant.

      R. A. Colwell, for defendants.
   Kuhn, J.

It appears that from 1873 to December, 1909, the defendant Alva Merriam, now deceased, was the owner of lot No. 12, Merritt & York’s addition to the city of Ionia, 136 feet deep by 66 feet wide. In December, 1909, Alva Merriam and his wife conveyed the north 42 feet of lot 12 to his son, Almon W. Merriam, and wife, for the consideration of $1, the grantees assuming the payment of a mortgage of $200 theretofore given on said north 42 feet, and giving a life lease back to Alva Merriam and his wife, and agreeing to pay rent of said premises at the rate of $8 per month. It is also claimed that at the time the defendant, Almon Merriam, had paid upwards of $300 on improvements on the house on the north 42 feet, which entered into the consideration of this deed. Some years previous to this conveyance a barn that stood upon the back or north end of the lot was transformed into a dwelling house, the original dwelling house on the south end of the lot being occupied by Alva Merriam as his homestead up to the time of his death. On May 10, 1910, suit was started by the complainant, who was a physician, on a claim for medical services, and on June 11, 1911, he recovered a judgment which, with costs, amounted to $421.20. An execution was issued and a levy made upon the entire lot 12. On October 11, 1911, this bill was filed in aid of execution. Issue was joined thereon, and subsequently Alva Merriam died, and the case was revived as against his administrator, an amended answer being filed by the defendants Almon and Carrie Merriam, in which it is stated, in addition to the statements made in the original answer, that they paid out some money on improvements on the property and the maintenance of Alva Merriam and his wife, amounting to about $1,000. After hearing the testimony the trial judge made the decree, dismissing the bill of complaint. Some testimony was taken as to the value of the entire lot with the improvements thereon at the time the deed was given by Alva Merriam to his son, the defendant Almon Merriam, and his wife. William Inman, who was the supervisor of the ward in which the property was located, and who had lived there for about 40 years, testified that the entire property was not worth to exceed $1,200. Witness Comstock, who was also a resident of the same ward for a great number of years, and whose property adjoined the Merriam property on the west, testified that in his judgment the property at that time was worth about $1,200. The defendant Almon Merriam testified that the whole premises were worth not to exceed $1,000 at the time the deed was given. Other witnesses produced by the plaintiff testified that in their opinions the property was worth in excess of these amounts, but the trial judge, who had the benefit of seeing and hearing the witnesses upon the witness stand, must have concluded that the testimony in support of the defendants’ claim as to value was to be believed.

It is the contention of the appellant that, by Alva Merriam setting off the north 42 feet and building a house thereon for commercial purposes and subsequently mortgaging it for $200, it thereby became distinct from the homestead, which consisted of the south 94 feet upon which the house stood which was occupied by himself and family. However, under the undisputed facts of this case Alva Merriam and his wife lived on lot 12 for some 30 years; and, while it is true that some years before the execution of the deed in question the old barn on the north end of the premises was- made over into a dwelling house and rented for a time at a small rental, yet, in our opinion, this in itself could not, and did not, divest the entire lot of its character as a homestead, unless the value thereof was in excess of $1,500 or until the change or leasing of the property had been consented to by Alva Merriam’s wife in writing. Section 2, art. 14, Constitution of the State of Michigan. It has been repeatedly held and recently reaffirmed in Township of Jasper v. Martin, 161 Mich. 336, at page 341 (126 N. W. 437, 137 Am. St. Rep. 508), that the leasing of a part of a homsetead without the signature of the wife was absolutely void. See cases there cited. See, also, Stauning v. Mercantile Co., 138 Minn. 478 (159 N. W. 788).

There is no proof in this case that the wife of Alva Merriam, who still resides upon the lot, has ever consented to the barn on these premises being changed over into a dwelling house, or that she consented to the same being leased; and, this not affirmatively appearing, and the testimony justifying the conclusion that the value of the lot was less than $1,500 in 1909, it must be said that the entire lot possessed all the attributes of a homestead. If this is true, it follows that the conveyance made at that time of the north 42 feet of the lot to the defendant Almon Merriam was not void as to creditors.

The decree dismissing the bill is affirmed, with costs to the defendant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    HOLMES REALTY CO. v. SILCOX.
    1. Brokers — Commissions—Contracts—Notice of Termination.
    Where a contract for the sale of a farm gave plaintiff “an option for eight months and thereafter until terminated by 30 days’ written notice,” such notice terminated the contract, and plaintiff was not entitied to any commission, although the farm was subsequently sold to a person interested by plaintiff during the life of the contract.

    3. Same — Contracts—Cancellation.
    Where the contract of sale provided for the right of caneellation, the rule that the owner cannot, with knowledge that the agents are negotiating a sale, cancel the contract and avoid payment of the commission, is not applicable; distinguishing Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544).
    3. Evidence — Notice to Produce — Documentary Evidence.
    No notice is necessary to produce documentary evidence, where the paper to be produced is itself a notice.
    4. Same — Documentary Evidence — Secondary Evidence.
    Where the plaintiff’s stenographer and manager testified that they had searched the files for the original letter of cancellation and were unable to find it, and that it had never been received by plaintiff, it was sufficiently accounted for, and no error was committed in allowing defendant to introduce a copy of it and testify that he mailed it to plaintiff on the same day and date that it was written.
    Error to Ingham; Collingwood, J.
    Submitted October 10, 1916.
    (Docket No. 92.)
    Decided December 21, 1916.
    Assumpsit by the Holmes Realty Company against C. H. Silcox and another for a commission on the sale of real estate. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Thomas A. Lawler and John F. Berry, for appellant.

      John I. Carpenter and Robert S. Ballard, for appellees.

       As to when real estate broker is considered cause of sale within the time limit by contract, see note in 44 L. R. A., at pages 349, 593.

   Kuhn, J.

In the spring of 1912 the defendants, who are husband and wife, owned a farm near the city of Lansing, Mich., as tenants by the entireties. On April 23d of that year agents of the plaintiff company went to this farm, where the defendants resided, and obtained from Mr. Silcox a written option contract, which he signed, by the terms of which he gave “an option for eight months and thereafter until terminated by thirty days’ written notice.” There is some dispute as to whether or not Mrs. Silcox signed the contract; plaintiff’s agents testifying that she did sign it in their presence, while Mrs. Silcox testified that she refused to do so, and that her husband signed her name thereto without her authority. It is the claim of Mr. Silcox that on November 20, 1912, he mailed a letter signed by himself to the plaintiff company in which he said:

“The contract on sale of our farm between you and C. H. and Lena Silcox is withdrawn on and after December 23, 1912.”

During the summer of 1912 a Mrs. Gibbs, who resided at Stanton, Mich., corresponded on behalf of herself and husband with the plaintiff company relative to the purchase of a farm near Lansing. She came to Lansing, and was shown the Silcox farm by Mr. Earl Covert, one of plaintiff’s agents. She was pleased with the property, but no definite agreement was arrived at, and she said she would buy the Silcox farm if she sold her place at Stanton. This offer on the part of Mrs. Gibbs to purchase continued contingent upon the sale of their place at Stanton, which occurred in July, 1913, more than six months after the claimed termination of the contract by the defendants.

On election day in April, 1913, Covert, while still in the employ of the plaintiff company, saw Mr. Silcox and showed him a letter written by Mrs. Gibbs; but Mr. Silcox claimed that he had about given up the idea of selling his farm at that time. Covert severed his connection with the plaintiff company about April 15, 1913, and became associated with another agency, and again resumed negotiations with the Silcoxes, which resulted in a formal contract being executed on July 8, 1913, giving the right to sell the farm to the new agency represented by Covert. After some correspondence with Mrs. Gibbs, it finally resulted in the farm being sold to them in September of that year for the sum of $5,600. This suit is brought to recover a commission provided for in the original option, of date April 23, 1912. The trial resulted in a verdict of no cause of action.

It is the claim of counsel for appellant that error was committed by the trial court in refusing to give certain requests to charge which embodied the law applicable to the case. It is contended that the plaintiff was the procuring cause of the sale, and that it was not necessary for the plaintiff to actually consummate the deal in order that it might be entitled to its commission, and various authorities are cited to support this contention.

The general proposition contended for is undoubtedly sound, but what seems to have been lost sight of by counsel is that in this case a contract was entered into by the express terms of which a definite date was set for the life of the contract between the broker and his principal. The question of whether or not the contract was terminated by a notice as provided for by its terms is a disputed one on this record; but this question was fairly submitted to the jury, and it must be assumed that they found that a proper notice was given in accordance with the terms of the contract. In order for plaintiff to profit from this contract, it was necessary for it, during the life of the contract, to produce a prospective purchaser able, ready, and willing to buy, and if such a purchaser had been produced by the plaintiff before December 23, 1912, it would undoubtedly have been entitled to the commission provided for in the contract. It clearly appears, however, that no such purchaser was produced within the prescribed time, as it appears without question that the Gibbses were not ready to purchase the farm until they sold their property at Stanton, which did not take place until some months after the expiration of the contract. It is true that as a result of the plaintiff’s efforts others may have profited. In the case of Sibbald v. Bethlehem Iron Co., 83 N. Y. 378 (38 Am. Rep. 441), the court said:

“The broker may devote his time and labor, and expend his money, with ever so much of devotion to the interests of his employer, and yet, if he fails, if without an agreement- or accomplishing a bargain, he abandons the effort, or his authority is fairly and in good faith terminated, he gains no right to commissions. He loses the labor and effort which was staked upon success. And in such event it matters not that after his failure, and the termination of his agency, what he has done proves of use and benefit to the principal. In a multitude of cases that must necessarily result. He may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and mateially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all this gives him no claim. It was part of his risk that failing himself, not successful in fulfilling his obligations, others might be left to some extent to avail themselves of the fruit of his labors.”

The case of Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544), is referred to by appellant’s counsel, and the general proposition is there laid down that, when the owner of real estate has placed it in the hands of an agency for sale, he cannot, with knowledge that the agents are negotiating with a proposed purchaser, cancel the authority, effect the sale himself, and avoid the payment of their commission. But in the case now before us the very contract provided for the right of cancellation, and this clearly distinguishes the present situation from the one in the Heaton Case. See Beadle v. Improvement Co., 140 Mich. 199 (103 N. W. 554, 6 Am. & Eng. Ann. Cas. 53); Horton v. Immen, 145 Mich. 438 (108 N. W. 746 ); Decker v. Klingman, 149 Mich. 96 (112 N. W. 727); Blakeslee v. Peabody, 180 Mich. 408 (147 N. W. 570).

Error is alleged because of the court permitting the introduction of a copy of the letter of cancellation which was offered in evidence. The contract does not provide how the notice of termination shall be given, but Mr. Silcox testified that he mailed the noticé to the plaintiff on the same day and date that it was written, and that it was never returned. Counsel claim that the original should first have been accounted for, and a notice given to the plaintiff to produce the original before secondary evidence is admissible; • but it seems to be well established that no notice is necessary, where the paper to be produced is itself a notice. See 2 Jones, Commentaries on Evidence, p. 296; 1 Greenleaf on Evidence (16th Ed.), § 563c; 17 Cyc. p. 559. It also appears that the plaintiff’s stenographer testified that all mail for the company came into her hands for filing, that she had made an examination of the files of the office and was unable to find the original, and that she had never received the notice. The plaintiff’s manager testified that he also searched the files of the office and was unable to find the original of the notice. Under these circumstances, there was no error in receiving secondary evidence of the contents of the letter.

The disputed questions of fact were submitted to the •jury with proper instructions, and, being of the opinion that the appellant’s assignments of error are without merit, the judgment is affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person J., did not sit.


text:
    BEMENT v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Statutes — Federal Statutes — Construction—Courts.
    In the construction of a Federal statute this court will be governed by the decisions of the Federal courts..
    2. Master and Servant — Federal Employers’ Liability Act— Limitation oe Actions — Estoppel—Fraud.
    An action under the Federal employers’ liability act (U. S. Comp. Stat. 1913, §§ 8657-8665), not begun within two years from the date of its accrual, cannot be maintained because not brought within the time limited by the act; this statute creating a new right of action as well as limiting the time for bringing suit, estoppel by fraud may not be relied upon by plaintiff.

      Error to Kent; Barton, J., presiding.
    Submitted October 9, 1916.
    (Docket No. 82.)
    Decided December 21, 1916.
    Case by George D. Bement, under the Federal employers’ liability act (35 U. S. Stat. 65), against the Grand Rapids & Indiana Railway Company for personal injuries. Judgment of nonsuit. Plaintiff brings error.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for appellant.

      James H. Campbell {Divert M. Davis, of counsel), for appellee.

       On constitutionality, application and effect of the Federal employers’ liability act, generally, see notes in 47 L. R. A. (N. S.) 38; L. R. A. 1915C, 47.

   Kuhn, J.

Section 6 of the Federal employers’ liability act (35 U. S. Stat. 65, 4 U. S. Comp. Stat. 1913, pages 3912-3916), provides:

“No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.”

The action in this case was not commenced within the two years prescribed by the statute, for the reason, as alleged by the plaintiff, that he relied upon certain fraudulent representations made to him by the defendant company, and that because of these fraudulent representations defendant company is estopped from asserting or setting up the statute of limitations as a bar to plaintiff’s cause of action. It is the contention of the defendant that the rules which apply to ordinary statutes of limitations do not apply to a statute creating a right of action and a new liability and fixing therein the time in which that action may be commenced. This presents the sole question here for review.

The statute in question being a Federal statute, we should be governed in its construction by the decisions of the Federal courts. While no decision of the United States Supreme Court involving the precise question here raised has been- called to our attention, the exact question has had the consideration of the court of appeals of the District of Columbia in Morrison v. Railroad Co., 40 App. Cas. D. C. 391, where it was said:

“* * * Plaintiff seeks to invoke the well-recognized rule that when a defendant, who relies upon an ordinary statute of limitations, has previously been guilty of deception or violation of duty toward the plaintiff, causing him to subject his claim to the statutory bar,’ such a defendant will be held to have wrongfully obtained an advantage, which, in good conscience, he is estopped to hold or plead. Bailey v. Glover, 21 Wall. 342; Holman v. Bridge Co., 117 Iowa, 268 (90 N. W. 833, 62 L. R. A. 395, 94 Am. St. Rep. 293); Chesapeake, etc., R. Co. v. Speakman, 114 Ky. 628 (71 S. W. 633, 63 L. R. A. 193). The defendant, on the other hand, insists that under said act of 1906 there is no room for the application of the foregoing rule; that this statute confers a right to which is attached a condition that it be enforced within the stated period. The act in question creates a liability where none existed, and takes away defenses formerly available. Coupled with this enlargement of the liability of common carriers is the limitation that no action shall be maintained under the act 'unless commenced within-one year from the time the cause of action accrued/ The ordinary statute of limitations confers upon a defendant the privilege of interposing a definite limitation of time as a bar to the enforcement of a liability existing independently of the statute defining the limitation. Such statutes, therefore, are merely limitations of the remedy. Statutes like the present are more. They create a right of action conditioned upon its enforcement within the prescribed period. The legislature, having the power to create the right, may affix the conditions under which it is to be enforced, and a compliance with those conditions is essential.
“ ‘The time within which the suit must he brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. * * * Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right.’ The Harrisburg, 119 U. S. 214 (7 Sup. Ct. 140).
“See, also, Walsh v. Mayer, 111 U. S. 37 (4 Sup. Ct. 260). It is therefore necessary for one seeking to enforce a right under such a statute to state a case within it, and time is of the essence of the right.”

In the case of Partee v. Railroad Co., 204 Fed. 970 (123 C. C. A. 292, 51 L. R. A. [N. S.] 721), a statute which fixed liability and also the time in which action must be commenced was under consideration, and Judge Sanborn, in writing the opinion, said:

“A statute which in itself creates a new liability gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. Such a statute is an oifer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. The Harrisburg, 119 U. S. 199 (7 Sup. Ct. 140); Pollard v. Bailey, 20 Wall. 520; Fourth Nat. Bank v. Francklyn, 120 U. S. 747 (7 Sup. Ct. 757); Brunswick Terminal Co. v. National Bank, 99 Fed. 635 (40 C. C. A. 22, 46 L. R. A. 625); Pittsburg, etc., R. Co. v. Hine, 25 Ohio St. 629; Dennis v. Railroad Co., 70 S. C. 254 (49 S. E. 869, 106 Am. St. Rep. 746); International Navigation Co. v. Lindstrom, 60 C. C. A. 649 (123 Fed. 475).”

See, also, 8 Am. & Eng. Enc. Law (2d Ed.), p. 875; 13 Cyc. p. 339; 25 Cyc. p. 1021.

A positive distinction seems to be made between cases in which the limitation of time for bringing suit is contained in the statute which creates the liability and right of action and general statutes of limitations of the rights of action existing under other statutes or under the common law. In the former the limitation of time is a limitation of the right, and, as has been said, the suit cannot be maintained if not brought within the time limited. In the latter the limitation of time for bringing suit is a limitation of the remedy only, and it has been held that under such general statutes of limitation the defendant may be estopped .from the benefit of the statute by an agreement waiving it, or by concealment or by fraud. The statute here in question creates a new liability, and takes away defenses formerly available, and the right of action therein created is conditioned upon its enforcement within a prescribed period. The action not having been brought within such period designated by “the statute, it is lost, and the trial court ruled correctly in so holding.

The judgment of no cause of action is therefore ■affirmed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.