text:
    CALBECK v. FORD.
    1. Damages — Liquidated Damages — Stipulations op Contract —Pleading.
    A declaration which sets forth and counts upon a contract containing a stipulation for $1,000 liquidated damages, and alleges that, by virtue of the contract, defendant is indebted to plaintiff in the sum of $1,500, and has not paid “ the several sums of money above mentioned,” or any of them, is sufficient to support a recovery of liquidated damages, although it includes specific items of damage which cannot be recovered with the liquidated damages.
    2. Fraud — Submission op Issues — Harmless Error.
    Error in instructions submitting the defense of false representations was harmless, where the jury,'in answer to a special question, expressly found that the only substantial representation relied upon to support the defense was in fact true.
    3. Liquidated Damages — Contract — Stipulation — Exchange op Property
    A contract for the exchange of a farm for village lots, a hardware stock, and an amount of money sufficient to make up the difference between the agreed value of the farm and the agreed value of the lots and invoiced value óf the stock, is a proper subject of a stipulation for liquidated damages in case of breach, as the actual damages in such case would be uncertain in their nature and difficult of ascertainment.
    4. Same — Contract—Execution—Validity.
    Plaintiff and defendant entered into a contract for the exchange of properties. A liquidated damage clause, taken from a form made by plaintiff’s attorney, was inserted therein without any previous agreement of the parties for such a clause. Defendant, however, knew of the insertion of the clause, and, after the contract was written, retained a copy overnight, and submitted it to his attorney before he finally executed it. The parties had each examined the other’s property before making the contract, and the sum specified as liquidated damages was not unreasonable. Held, that the stipulation for liquidated damages would be given effect according to its terms, and would not be regarded as imposing a penalty.

      Error to Berrien; Coolidge, J.
    Submitted February 8, 1905.
    (Docket No. 106.)
    Decided May 12, 1905.
    Assumpsit by Lewis Calbeck against Frank B. Ford for breach of a contract to convey certain real estate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cady & Andrews (George W. Bridgman, of counsel), for appellant.

      Gore & Harvey, for appellee.
   Blair, J.

The plaintiff in this suit brought action against the defendant and appellant for the alleged breach of a certain contract executed by the parties on the 21st day of January, 1908, whereby the plaintiff agreed to convey to the defendant his farm, of 170 acres, in the county of Marshall and State of Indiana, at an agreed valuation of #8,750. In consideration of such conveyance, the defendant agreed to sell and convey to the plaintiff certain lots in the village of Berrien Springs at an agreed valuation of $2,500; the hardware stock owned by defendant, at a valuation to be determined by an invoice at the wholesale cash price of the same, plus the freight; and an amount in money to make up the difference in valuation between plaintiff’s farm and defendant’s lots and stock of goods. The contract contained the following clauses:

“It is hereby further mutually agreed and understood by and between the parties hereto and as a part of the consideration of this agreement, that each party hereto is to provide for the use of the other, within ten days from date, proper abstracts of title to the property hereby agreed to be conveyed, showing good and sufficient title to the same in the grantors herein mentioned, and also tax receipts for the year 1902. All personal property and real estate to be clear of all incumbrance, except as herein noted. All deeds and bill of sale to be passed and negotiations to be closed within thirty days from date of this agreement, unavoidable delays excepted. Each party agrees that if the other party performs and complies fully with all the conditions of this agreement that if he fails in his part, he will pay it to the party as liquidated damages the sum of $1,000 within thirty days from date of said failure. In witness thereof the said parties hereto have hereunto set their hands and seals the day and year first above mentioned.
“Lewis Calbeck.
“Frank B. Ford.”

Plaintiff’s declaration contained a single count, alleging that defendant was indebted “ to the said plaintiff in the sum of $1,500 under and by virtue of a written contract then existing between said parties,” and setting out the contract in full and averring that—

“In consideration thereof, on the said day, to wit, March 25, A. D. 1904, the defendant undertook and promised the plaintiff well and truly to pay him, the said plaintiff, the said sum of $1,500 when the said defendant should be thereunto afterwards requested. And plaintiff avers that he has tendered performance of each and every covenant and condition of said contract by him to be performed thereunder, and plaintiff has tendered to said defendant a good and sufficient warranty deed of said 170 acres of land in Marshall county, Indiana, and requested said defendant to convey and transfer to plaintiff the lands and property in said contract therein agreed to be conveyed and delivered to plaintiff, and requested defendant to comply with each and every condition of said contract; and plaintiff avers that the said defendant refused to accept said deed, and wholly refused to perform any of the covenants of said contract. And by reason thereof the plaintiff has become liable to pay a large sum of money, to wit, the sum of $200 as commissions to real estate brokers for negotiating an exchange of said properties, and a large sum of money, to wit, $75, in the preparation to move his said family and personal effects from the State of Indiana to the State of Michigan, and a large sum, to wit, the sum of $75, in personal expense for railway and hotel service and for traveling expense, and on account of said contract said plaintiff has incurred divers other large expenses exceeding the sum of $75. Nevertheless the said defendant, although often afterwards requested to do so, hath not as-yet paid the several sums of money above mentioned, or any or every of them, or any part thereof, to the said plaintiff, but to pay the same, or any part thereof, to the said plaintiff, the said defendant hath hitherto wholly refused and still doth refuse, to the damage of the said plaintiff in the sum of $1,500; and therefore he brings suit,” etc.

The following amendment was made at the trial of the above cause upon an objection made by counsel for the defendant to the introduction of any proofs after the jury had been impaneled and a witness sworn:

“ Plaintiff avers that he was at all the times mentioned herein, and now is, the owner in fee simple of the premises described in said contract, situated in Marshall county, Indiana; that plaintiff, as in said contract provided, furnished and caused to be delivered to the defendant an abstract of title, properly certified, to said premises, showing thereby a good and sufficient title thereto in the plaintiff, and that plaintiff within ten days from January 21, 1903, as in said contract agreed, paid the taxes assessed against the said premises for the year 1902, and produced and delivered to the defendant the official receipt therefor, and that said premises were at all said times, and now are, free and clear of all incumbrances; and that the plaintiff at said times had the right to convey same, and was ready, willing, and able to deliver possession therefor to the defendant in accordance with the terms and covenants of said contract. ”

To this declaration the defendant pleaded the general issue, and gave notice of special defense, in substance, of fraudulent representations, statements, and warranties on the part of plaintiff as to the productiveness, value, and character of the soil of his said farm, upon which defendant relied, to his injury.

The case was tried by a jury, and there was a conflict of testimony as to the representations made by plaintiff with reference to his farm in Indiana, and as to their truth or falsity. At the close of the testimony, defendant’s counsel proposed a special question of fact to be submitted to the jury, as follows: “ Was the Calbeck farm a good productive farm, of sandy loam, with a gravel and clay subsoil ? ” This question was submitted to the jury by the court, and their answer was, “Yes.” A question was also submitted on behalf of plaintiff as follows: “ Did plaintiff make false representations to the defendant as to the soil and subsoil ?” To this question the jury answered, “ No.”

The following testimony was given by plaintiff with reference to the damage clause in the contract:

“A Juror: Who drew up that contract?
“A. Mr. Stauffer and Mr. McOmber, real estate men. It was Mr. McOmber’s office. He had his typewriter dictate it.
Q. Who suggested the amount of forfeiture there at #1,000?
“A. I will tell you how that is: Mr. Stauffer had a contract with him, a copy of a contract that he always whenever, he made a trade with anybody — that he always copied from that — and that is the way we drew this contract up about the $1,000.
“A Juror: Did either party object to that when you were talking about the contract ?
“A. No, sir.
Q. There was no objection to either part of the contract by either party ?
“A. No, sir. * * *
“Mr. Bridgman:, That copy was then drawn from a copy Stauffer had that he always used ?
“A. Yes, sir. Of course, we put it different—
Mr. Bridgman: That answers the question. Mr. Stauffer dictated that direct to the typewriter, did he not, himself, from a paper he had in his hand ?
“A. Mr. McOmber helped. There was suggestions made on both sides.
Q. And up t© that time you and Ford had never talked about that #1,000 any there at all, had you ?
“A. Why, no. * * *
Q. But you had got your contract, as you claimed, all made, except reduced to writing ?
“A. No, sir. It was not all made. There was places in there where we filled in.
“ Q. In the contract ?
“A. Yes. It was, you might say, a rough sketch— whatever you would call it. Kind of an outline of the contract, and then we filled it in.
Q. What was a rough sketch — outline of the contract ?
“ A. That Mr. Stauffer had; and we dictated it to his typewriter, and, wherever we came to where it wanted something filled in we wanted, we put it in.
Q. That meant description, etc., does it not?
“A. Yes, sir. You might call it description.
Q. That had all been agreed to between you and Ford ?
A. Why, yes; we had talked all over about that.”

The defendant testified upon the subject of this contract, as follows:

“ Q. You read this contract, ‘Exhibit A,’ carefully, before you signed it, did you not ?
“A. I presume I did; yes, sir.
Q. You knew and understood what you were signing when you signed that paper ?
“A. Yes, sir. I read the contract carefully before I signed it and knew what I was signing. Knew that it contained this clause, ‘ Each party agrees, if the other performs and complies fully with all the conditions of this agreement, that if he fails in his part, he will pay it to the others as liquidated damages, the sum of $1,000 within thirty days from the date of the failure.’ I understood that. I think I had a copy all night. It was drawn up about ten or eleven o’clock at night, and signed before an early train in the morning. I submitted it to Mr. Murdoch, a lawyer.”

Plaintiff gave evidence tending to show full performance-of the contract upon his part, and the tender of a proper deed to the defendant on the 19th day of February, 1903, at the village of Berrien Springs, which was refused hy defendant, and defendant declined to carry out the agreement; contending that he had been deceived by the plaintiff as to the character of the soil of the farm.

“ The principal representation of Mr. Calbeck was that the farm was of a sandy loam, with gravel and clay subsoil. I know of my own knowledge it is not a good, productive farm.”

And again:

‘ ‘ He represented the farm to be good, sandy loam, with a gravel and clay subsoil, and that is the principal representation.”

The plaintiff gave evidence tending to show that the farm corresponded with this representation, and was worth from $40 to $50. an acre, while the defendant gave evidence tending to show that the farm was a sandy tract, without gravel and clay subsoil, and worth only about $30 an acre. On the subject of damages, plaintiff gave evidence tending to show that he had paid to Mr. Stauffer, as his commission in the transaction, $175; that he paid for moving and storing his goods, and paid $5 demurrage on the car in which they were loaded; that he made four or five trips to Berrien Springs, and his expenses on each trip were between $5 and $6; and that his time was worth $2 per day.

The defendant contended that the declaration was insufficient as a basis for the recovery of liquidated damages, but was designed for and only appropriate to the recovery of actual damages; that the $1,000 mentioned in the last clause of the contract was in the nature of a penalty, and not a fixing by the parties of liquidated damages; that there was no testimony showing the subsoil to be clay and gravel, but that all the testimony showed the subsoil to be loose yellow sand; and finally that the court erred in the giving of requests, and in its voluntary charge upon the subject of fraud.

We think the declaration was sufficient to support a recovery for liquidated damages. The declaration set forth and counted upon the contract, alleging that by virtue of this contract the defendant was indebted to the plaintiff in the sum of $1,500, and we understand the concluding paragraph of the declaration, “Nevertheless the said defendant, though often afterwards requested to do so, hath not as yet paid the several sums of money above mentioned, or any or every of them, or any part thereof, to the said plaintiff,” to apply as well to the $1,500 alleged to be due under the contract as to the specific sums for commissions, etc. The fact that plaintiff included in the declaration items which he could not recover if allowed to sustain his action as to liquidated damages should not prevent his recovery of the liquidated damages, if the case was appropriate to such recovery. If the sum of $1,000 specified in the contract was the amount determined upon by the parties as the actual liquidated damages flowing from the breach of the contract, then such damages were the necessary result of the breach of the contract, and it was unnecessary to do more than claim general damages. 5 Enc. Pl. & Prac. pp. 717, 718, 739; Spicer v. Hoop, 51 Ind. 365.

We think the question of fraudulent representations on the part of the plaintiff, and assignments of error upon the charge of the court with reference to this subject, are precluded by the verdict of the jury. The only substantial representation upon which the defendant relied was that plaintiff represented the farm to be good, sandy loam, with a gravel and clay subsoil. The jury having expressly found, in answer to the special question of fact propounded by defendant’s counsel, that the Calbeck farm was a good, productive farm, of sandy loam, with a gravel and clay subsoil, it is not material whether the charge of the court or the requests given by the court stated the rule of law too broadly in favor of plaintiff as to what constituted fraudulent representations, or not, since such action could not have been harmful to defendant. We have carefully read the record in the case, and do not agree with the claim of defendant’s counsel that there was no evidence upon which the jury could properly answer this question in the affirmative.

The principal question in the case is whether the sum of $1,000 provided for in the last clause was inserted as a penalty, or as the deliberate determination in advance of the actual, liquidated damages to be paid by the party who violated the contract. There is much confusion and some apparent conflict in the decisions of the courts of the different States- as to the principles which should govern in the determination of this question. The subject was considered at an early day in this State, and, after a full and careful consideration of the authorities and the principles which should be applied, Mr. Justice Christiancy, speaking for the court, laid down the following rules in Jaquith v. Hudson, 5 Mich. 123:

“First. The law, following the dictates of equity and natural justice in cases of this kind, adopts the principle of just compensation for the loss or injury actually sustained ; considering it no greater violation of this principle to confine the injured party to the recovery of less than to enable him by the aid of the court to extort more. It is the application in a court of law of that principle long recognized in courts of equity, which, disregarding the penalty of the bond, gives only the damages actually sustained. This principle may be stated, in other words, to be that courts of justice will not recognize or enforce a contract, or any stipulation of a contract, clearly unjust and unconscionable. * * *
“But the court will apply this principle and disregard the express stipulation of parties only in those cases where it is obvious from the contract before them and the whole subject-matter that the principle of compensation has been disregarded, and that to carry out the express stipulation of the parties would violate this principle, which alone the court recognizes as the law of the contract.
“ The violation or disregard of this principle of compensation may appear to the court in various ways — from the contract, the sum mentioned, and the subject-matter. Thus, where a large sum (say one thousand dollars) is made payable solely in consequence of the nonpayment of a much smaller sum (say one hundred dollars) at a certain day, or where the contract is for the performance of several stipulations of very different degrees of importance, and one large sum is made payable on the breach of any one of them — even the most trivial — the damages for which can in no reasonable probability amount to that sum. *
“ The real question in this class of cases will be found to be not what the parties intended, but whether the sum is in fact in the nature of a penalty; and this is to be determined by the magnitude of the sum in connection with the subject-matter, and not at all by the words or the understanding of the parties. The intention of the parties cannot alter it. * * *
“But secondly, there are great numbers of cases where, from the nature of the contract and the subject-matter of the stipulation, for the breach of which the sum is provided, it is apparent to the court that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty by reference to any pecuniary standard, and where the parties themselves are more intimately acquainted with all the peculiar circumstances, and therefore better able to compute the actual or probable damages than courts or juries, from any evidence which can be brought before them. In all such cases the law permits the parties to ascertain for themselves, and to provide in the contract itself, the amount of the damages which shall be paid for the breach. In permitting this, the law does not lose sight of the principle of compensation, which is the law of the contract, but merely adopts the computation or estimate of the damages made by the parties, as being the best and most certain mode of ascertaining the actual damage or what sum will amount to a just compensation. The reason, therefore, for allowing the parties to ascertain for themselves the damages in this class of cases, is the same which denies the right in the former class of cases, namely,' the courts adopt the best and most practicable mode of ascertaining the sum which will produce just compensation.
“ In this class of cases, where the law permits the parties to ascertain and fix the amount of damages in the contract, the first inquiry obviously is whether they have done so in fact. And here the intention of the parties is the governing consideration, and in ascertaining this intention no merely technical effect will be given to the particular words relating to the sum, but the entire contract, the subject-matter, and often the situation of the parties with respect to each other and to the subject-matter, will be considered. ”

This case has been frequently referred to with approval, and is a clear and authoritative statement of the rule as expounded by this court. Applying the principles above stated to the facts of this case, it appears to us that the case falls within the cases referred to in the second class, where, from the nature of the contract and the subject-matter of the stipulation, it is apparent that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty by reference to any pecuniary standard. The weight of authority is distinctly in favor of the proposition that cases like the one under consideration come within this classification. 19 Am. & Eng. Enc. Law (2d Ed.), p. 419, and cases cited in footnote 6.

This being, therefore, an appropriate case for the fixing of the actual damages by the parties in advance, the question arises whether they actually have done so in this contract. The case of Gobble v. Linder, 76 Ill. 157, is very much like the case at bar. In that case the written contract between the parties provided for an exchange of farms.

“It contained a provision, in case either one failed to make the deed in exchange at the appointed time, such party would forfeit and pay as damages to the other the sum of $1,500. Plaintiff was ready and offered to perform the agreement on her part, but, defendant having failed to make a deed as he had contracted to do, this suit was brought to recover the sum named in the contract.”

The court say:

“ Nothing in the agreement or attendant circumstances manifests any intention that the sum named should be treated as a penalty. On the contrary, it is more rational to presume the parties, in view of the difficulties we before suggested of making accurate, proof of the damages that would flow from a breach of the contract, had adjusted in advance what would be compensatory damages to either party injured. As was said in Peine v. Weber, 47 Ill. 41:
“ ‘Unless there is good ground for it, a court cannot declare a stipulated sum, which the parties themselves have said shall be the amount of damages, to be a penalty merely.’
“The facts in this case afford no sufficient reason for so declaring. The contract was fairly made and understandingly entered into. Considering the language employed, the nature of the contract, what the parties had contracted to do, and all the attendant circumstances, we cannot avoid the conclusion it was the intention that the sum named should be the measure of damages in case of the failure of either party to perform the agreement. As sustaining this construction of the contract, numerous cases entitled to consideration as authority might be cited. It will only be necessary to refer to a few most analogous — among others, the following: Slosson v. Beadle, 7 Johns. (N. Y.) 72; Knapp v. Maltby, 13 Wend. (N. Y.) 587; Tingley v. Cutler, 7 Conn. 291; Streeper v. Williams, 48 Pa. St. 450; Mead v. Wheeler, 13 N. H. 351.”

See, also, Williams v. Green, 14 Ark. 315.

In the case at bar the only circumstance which can distinguish it from the authorities cited is in the fact that the parties did not originally agree upon the damage clause, but the same was copied or taken from a form made by plaintiff’s attorney for use in similar cases; and it might possibly be inferred from the testimony above set forth that the same sum ($1,000) was used by Mr. Stauffer in all cases, which might furnish ground for the contention that it was designed to secure the performance of the contract as a penalty, rather than as a statement in advance of the actual damages which should ensue in case of its violation. This clause, however, was inserted with the full and intelligent acquiescence of defendant, and, after the contract had been fully written, he retained a copy overnight, and submitted the draft to his attorney before he finally executed it. Under the evidence in the case, the sum provided in the contract cannot be said to be excessive. In fact, if the question had been submitted to a jury as to the actual damages which the plaintiff was entitled to recover, and the jury had believed the testimony of the defendant’s witnesses as to the value of the plaintiff’s farm, and had found, as they did, that there were no fraudulent representations on plaintiff’s part, he would have been entitled to recover double or treble the amount fixed by the contract as the liquidated damages. Stewart v. McLaughlin’s Estate, 126 Mich. 1, 6, 7.

The defendant, prior to the making of the contract, had examined the plaintiff’s farm; and, although he claims that snow and frozen soil prevented an adequate examination, from such examination as he made, and the representations of plaintiff, he supposed he was fully informed as to the character and value of the property. The plaintiff likewise had examined the defendant’s property. And the parties were better able to compute the actual or probable damages than courts or juries. The sum specified as liquidated damages was not unreasonable. The agreement was dictated by the joint action of the parties, was retained by the parties long enough to afford ample opportunity for deliberate consideration, and finally was submitted to counsel skilled in its interpretation, when it was understanding^ executed. We think the agreement embodies the true intent of the parties, and should be upheld and enforced as they have made it.

We find no other assignments of error requiring discussion, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    THAYER v. GIBBS.
    1. Justices op the Peace — Jurisdiction — Declaration — Amount Sued por — Waiver op Objection.
    Where a declaration, in a suit before a justice of the peace claimed $300 in a special count for breach of contract, and claimed $300 on the common counts in assumpsit, and defendant, after trying the matter on the merits in justice’s court, took a general appeal to the circuit, and there participated in the selection of a jury, and permitted a witness to be called and asked questions, before objecting that the amount sued for exceeded the jurisdiction of the justice, the objection was waived.
    2. Evidence — Contract—Writings—Varying by Parol.
    In an action on a written contract whereby defendant leased, his farm on shares to plaintiff, parol evidence as to another agreement between, the parties, to the effect that a dwelling house and certain fields were not to be included in the farm lease and contract, was incompetent.
    Error to Shiawassee; Smith, J.
    Submitted February 8, 1905.
    (Docket No. 105.)
    Decided May 12, 1905.
    Assumpsit by Webster Thayer and Miles Bentley against George W. Gibbs for breach of a certain lease. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Martin V. B. Wixom, for appellant.

      Watson & Chapman, for appellees.
   Blair, J.

Plaintiffs brought suit in justice’s court against defendant for damages alleged to have resulted from the breach by defendant of the following contract:

‘ ‘ Contract made and entered into this 26th day of March, 1902, in Bennington, Shiawassee county, Michigan, G. W. Gibbs, of the first part, and Webster Thayer and Miles Bentley, of the second part, to wit: That G. W. Gibbs, of the first part, agrees to let his farm lying in the township of Bennington, on section 25, to the parties of the second, part on shares; that the party of the first part is to have one-half of all the proceeds of said farm that is raised thereon and the parties of the second part agree to do all the work on said farm and sow or plant such fields as said party of the first part shall direct, also that the party of the first part is to furnish one-half of all seed sown on said farm and to pay one-half of the threshing machine bill, also that the parties of the second part further agree to work the road taxes on said farm and also agree to draw out all manure that is on said farm and spread the same wherever needed, also that the party of the first part is to pasture some 30 sheep and ,one cow on said farm.
“ Party of the first part,
“ G. W. Gibbs.
“ Parties of the second part,
“Webster Thayer.
“ Miles Bentley.”

The declaration filed in the case in the justice’s court contained a special count on the contract, concluding, “Wherefore the said plaintiffs say they are injured and have sustained damages amounting in all to the sum of $300.” To this special count the common counts were added, concluding, “To the plaintiffs’ damage of $300, and therefore they bring suit.” The defendant pleaded the general issue, with notice of a former adjudication. The case was tried by a jury, who rendered a verdict in favor of plaintiffs, but in what amount does not appear from the record, and the judgment was entered upon said verdict in favor of plaintiffs and against the defendant. From this judgment the defendant appealed to the circuit court, where the cause came on for trial before the court and the jury. After the jury had been impaneled, the plaintiffs’ counsel called one of the plaintiffs to the stand, and, after asking him two questions, the attorney for the defendant made the following objections :

“ Before we go any further, I wouid like to interpose an objection to giving any testimony in the case, for the reason the court has, no jurisdiction over the subject-matter in this suit, for the reason: First, there is a misjoinder of counts in the declaration. There is a count in trespass on the case and in assumpsit. The declaration also contains the common counts. The special counts claim damages $300, and the common counts claim damages $300, making a total claim of $600. There is a misjoinder of counts that gave the justice of the peace no jurisdiction to hear the case. I object to it, as it gives this court no jurisdiction to hear it. I object to it in this court. * * *
11 Mr. Wixom: I further object to the introduction of any testimony in this case for the reason the declaration claims damages in excess of the amount recoverable before a justice of the peace, namely, $60®.
The Court: I think that should have been demurred to on the other trial. I won’t bother about it here. If there was anything in it, it should have been a subject of demurrer in justice’s court. I will give you an exception. Proceed.”

These objections, which were overruled by the court, raised the principal questions upon which defendant’s counsel relies for reversal of the judgment. We think the first objection was wholly without force or merit. The pleadings in justice’s court are liberally construed, and, in our opinion, the special count upon the contract was sufficient in form and substance, and was not liable to the objection made against it that it was a combination of counts in different forms of action. It was very clearly a count for breach of the conditions and covenants of the agreement, which was set forth in terms in the count, and the language referred to by defendant’s counsel as justifying his contention that the declaration contained counts in trespass, trover, etc., is the language used in setting out the breaches of ’the contract.

The second objection presents greater difficulty. The .statute conferring jurisdiction on justices of the peace in civil cases provides that they shall have concurrent jurisdiction “ in all civil actions upon contract, express or implied, wherein the debt or damages do not exceed three hundred dollars.” 1 Comp. Laws, § 103. In Swift v. Woods, 5 Blackf. (Ind.) 97, Woods sued Swift in an action of assumpsit before a justice of the peace. The writ was for an amount not exceeding $100. The declaration contained three counts, there being a separate claim of $50 in each count for the defendant’s breaches of contract, etc. The court say:

“The objection to the suit founded on the amount demanded in the declaration should have been sustained. Each count in a declaration is always considered to be for a separate cause of action. Were the counts not so considered, more than one would be inadmissible. The plaintiff in this action claims by the three counts $150, which sum is beyond the jurisdiction of a justice of the peace, and there is no general conclusion to the declaration limiting this claim.”

In Wells v. Scott, 4 Mich. 347, which was an action of trover, originally brought before a justice of the peace, "the declaration claimed the sum of $115 and interest. There was a plea of the general issue, and judgment for the plaintiff for $115 damages and costs. From the judgment thus rendered by the justice an appeal was taken to the circuit court, and from the judgment rendered in the circuit court the case was carried to the Supreme Court on writ of error, where it was claimed by the plaintiff in error that the justice of the peace had no jurisdiction of the cause, and that the appeal to the circuit court gave that court no jurisdiction for the reason that the amount claimed in the declaration exceeded the amount over which the justice of the peace had jurisdiction. It was said by this court:

“It therefore follows that the justice before whom this cause was commenced was without jurisdiction, and unless it shall be found that the plaintiff in error, by some subsequent proceedings, may be regarded as having waived his legal rights, he must still prevail. If the cause had been removed to the circuit court by writ of certiorari, alleging the want of jurisdiction of the justice as error, .the judgment must have been reversed; or, if that question had been raised at the circuit court under the appeal, it would have been the duty of the circuit court to have dismissed the proceedings, for the appeal, as such, did not give the circuit court jurisdiction. Nichol v. Patterson, 4 Ohio, 200; Stephens v. Boswell, 2 J. J. Marsh. (Ky.) 29; Swift v. Woods, 5 Blackf. (Ind.) 97. Instead of pursuing this course, however, it does not appear that the party raised the question at all, either before the justice or in the circuit court, but that he seeks to avail himself of it here for the first time, and, we think, too late to be made available. * * * But we think that a party who would take the benefit of such objection should be required to do so in some form at an earlier stage of the proceedings. The circuit court has original jurisdiction of the subject-matter of the suit, and it acquired jurisdiction of the parties by their voluntary appearance. And the party by going to trial there upon the merits without raising any objections to prior proceedings must be regarded as having waived any errors he might otherwise have taken advantage of. ”

This case was followed and approved in Tower v. Lamb, 6 Mich. 362, and Evers v. Sager, 28 Mich. 47. In the case last cited it was held by this court that the statute allowing amendments to the pleadings or the filing of new pleadings in the circuit court upon an appeal from the justice’s court did not warrant the introduction of a new cause of action or such a variation in the plaintiff’s claim as would have ousted the justice of jurisdiction if made in the court below, as by increasing the ad damnum beyond •the limit of his jurisdiction. The court say, after discussing Wells v. Scott and Tower v. Lamb, supra:

“ In both cases there was a recovery beyond the jurisdiction of the justice and the proceedings before the justice were void for want of jurisdiction. The defendants in each case treated them as valid, and appealed them to a higher court, where the jurisdiction was ample, and where, consequently, it was competent to waive the defect which existed below. In this case there was no defect below, and if it is competent for a defendant on appeal to waive such a defect by a mere failure to bring it to the notice of the court, still more clearly must it be competent for him by his express assent to waive that which only becomes a defect at all by relation back to the case as it stood before appeal taken. He has consented in an appellate court to have the case put in this shape, and, as the jurisdiction of that court is unlimited, his objection that the case is no longer the same is purely technical, and should not be allowed under the circumstances.”

In Wetherill v. Inhabitants of Congressional Township, 5 Blackf. (Ind.) 357, the supreme court of Indiana held, following the decision in Swift v. Woods, supra, that a declaration containing four counts, each for the sum of $62 constituted a demand exceeding the jurisdiction of the justice; but in the order reversing the judgment the case was remanded, with leave to the plaintiffs to amend the declaration.

In Woolley v. Wilber, 4 Denio (N. Y.), 570, Wilber sued Woolley before a justice by summons, claiming damages to the extent of $100. He declared in trespass for killing his dog. There were two counts, each of which concluded, “To the plaintiff’s damage of $100.” The defendant pleaded the general issue, and the cause was adjourned. On the adjourned day the defendant suggested that the justice had no jurisdiction, as the declaration claimed more than $100 damages, and that nothing which' the parties could do would give jurisdiction. The plaintiff thereupon asked leave, which the justice granted, to so amend the declaration as to limit the whole claim of damages to $100. The court say:

‘ ‘ The summons was right. It was personally served, and both parties appeared. But as the plaintiff made a mistake in the form of his declaration by claiming damages beyond the jurisdiction of the justice, it is insisted that the cause was completely out of court, and therefore the justice had no power to allow the amendment. I think that is going too far. It may be conceded that without an amendment there would have been a fatal objection to the judgment, although the verdict was only ten dol- ■ lars; * * * but where the party has been regularly brought into court, and is present when the motion is made, I see no good reason why the pleadings may not be amended in a point touching the jurisdiction of the court as well as in relation to any other matter. And, if the justice had power, it was a very proper case for allowing the amendment to be made.”

If the rule, as stated by the courts of Indiana and New York, is the correct rule, as we believe it is, then the plaintiff would have been properly permitted to amend his declaration, if he had desired to do so, and this would have been the more prudent course for him to have taken. However, we think that, under the circumstances of the case, the defendant waived his right to object to the question of jurisdiction by his action in the case. After trying the matter out upon the merits in justice’s court, he appealed the case by general appeal to the circuit court for the county, which was a court having jurisdiction of the subject-matter, and also of the parties by their voluntary appearance, and where, as held by this court, it was competent for him to waive the jurisdictional question. By his participation in the selection of the jury and permitting the witness to be called upon the stand and interrogated before raising any question, we think he must be held to have waived his right to object. The interests of justice require that a party who desires to raise such a question as that in this case should make it at the first reasonable opportunity.

The only other questions in the case which demand consideration are those arising upon the rulings of the court in excluding testimony. Defendant’s counsel put to him the following questions:

Q. Now you may state, Mr. Gibbs, whether or not at the time this contract was made and executed before you there was another transaction between you and Mr. Bentley and Thayer.
“A. Yes.
“ Q. You may state, Mr. Gibbs, what that transaction was.
Mr. Chapman: I object to it as immaterial.
The Court: I think that is not definite enough. It doesn’t call the' witness’ attention so we know what you are calling for. We will find out what it is about first. (Defendant excepted.)
Q. You may state whether or not you had a separate and another transaction with these same parties, Mr. Bentley and Mr. Thayer, in regard to some part of the land where your farm is now located.
“Mr. Chapman: I object to it as incompetent, immaterial, and irrelevant.
‘ ‘ The Court: I think the question as it now stands is incompetent. I sustain the objection. (Defendant excepted.)”

Again, plaintiff put the following question to Mr. C. W. Sager, who drafted the lease of the farm:

Q. Now you may state whether or not, at the time this lease was made and executed there, that there was another transaction between these parties in regard to this land that was not embodied in this contract.
“Mr. Chapman: I object to it as indefinite and indirect way to attempt to vary the terms of the lease.
The Court: Objection sustained. (Defendant excepted.)”

It is apparent from the cross-examination by defendant’s counsel of plaintiffs and their witnesses that the separate agreement to which he referred was an agreement that the dwelling house and certain fields were not to be included in the farm lease. It is so clearly apparent that this testimony was not competent that it is unnecessary to devote further attention to the subject.

We find no errors in the proceedings calling for a reversal of the judgment, and the judgment is affirmed, with costs.

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


author: McAlvay, J.

text:
    CHALL v. DETROIT STOVE CO.
    Master and Servant — Injuries to Servant — Pleading—Variance.
    Where a declaration for injuries to a servant alleged negligence in the employment of plaintiff, a boy of immature years and no experience, to work on a dangerous machine, requiring skill and extraordinary care to operate, without warning him of its dangerous character or properly instructing him how to operate it, and contained no allegation that the machine was out of repair, there could be no recovery on evidence that the dangerous character of the machine was the result of a want of repair.
    Error to Wayne; Rohnert, J.
    Submitted February 9, 1905.
    (Docket No. 128.)
    Decided May 12, 1905.
    Case by W. Carl Chali, by next friend, against the Detroit Stove Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      George Gartner and Charles Kudner, for appellant.

      D. Augustus Straker, for appellee.
   McAlvay, J.

This is an action for damages for personal injuries received by plaintiff while working for defendant. From a judgment for plaintiff, recovered in the Wayne circuit court, defendant brings the case to this court by writ of error.

Plaintiff is a minor, and by his next friend brought this action on the case against the defendant for negligence, charging in his declaration that the negligence and failure ■of duty by defendant towards plaintiff was as follows:

“ (a) That defendant did not employ a person of mature years and capable of operating said large machine with skill, who would realize its dangerous character if not manipulated with care and caution in the hands or when ■operated by the operator, but, on the contrary, negligently, carelessly, and wantonly directed said plaintiff to operate said machine so dangerous in character, which required skill and extraordinary care and caution, and which said plaintiff was not able, and could not, by reason of his tender age, to wit, of the age of 14 years, use the care and caution, nor was he able to realize the particular care and caution necessary to be employed in operating said machine.
“ (b) The said defendant failed in its duty, at the time and upon the date aforesaid, which it owed said plaintiff, in that it did not warn the plaintiff of the dangerous character of said large machine upon which plaintiff was directed to work, and did not instruct the said plaintiff, who ■had no previous experience upon said machine or machines of like character, and was not of sufficient age to realize its dangerous character.”

There was no allegation in the declaration that defendant was negligent in putting plaintiff at work upon a machine not in good and safe condition, or in not keeping the said machine in proper repair.

Plaintiff at the time of the injury was 15 years and 6 .months old. He was active and intelligent for his years. He first went to work in shops at the age of 14, and began work for defendant about 3 months before he was injured. His first work for defendant was taking iron from the shears for about two weeks. He next worked at a wire-cutting machine for the same length of time. For the balance of the time, up to about 15 minutes to 12 o’clock on the day of the injury, he worked on a machine for punching holes in sheet iron. On this day, after finishing the work for him to do at that machine, he went to the foreman and asked him what to do next, and the foreman set him to work on the machine at which he was injured. He was instructed for a few minutes by the foreman, and ran the machine until noon, then came back after dinner and worked there until half past two o’clock, when his hand was injured. This was a crimping machine, and worked with a treadle. Plaintiff and the foreman practically agree as to what instructions were given how to operate the machine. He had never worked the machine before, and never knew how to work it, except what was told him at the time. He was told to press his foot upon the treadle in order to make the die of the machine come down. He was given a screw-driver to lift and move the sheet of iron, being worked upon, and to use in removing the same, and was told never to get his fingers under the die; that it was dangerous. He was also told not to put his foot on the-treadle when his hand was under the die. Plaintiff could not tell how the accident happened, and did not remember just what he was doing. He said that just before he was hurt his hand was on the screw-driver near the point at the bottom part of the machine, but did not remember how far in or out. He did not remember what he was doing with his feet. Plaintiff did not know that the knife-ever went down without putting the foot on the treadle. After the accident the screw-driver was found in the press, smashed; the die was broken, and the piece which makes the crimp bent and cut out the size of the screw-driver.

The important errors assigned in the case, necessary to-be considered in its determination, are:

1. The refusal of the court, when the case was closed, to instruct the jury that under the pleadings and evidence in the case the plaintiff could not recover, and that they must return a verdict for defendant.

2. Those portions of the charge of the court relative to what was called by the court “ the self-tripping machine,” at which the plaintiff was injured.

The negligence of defendant, as set forth in the declaration, upon which recovery was predicated, consisted, as hereinbefore stated:

1. That the plaintiff, of immature years and no experience, was employed to work on a dangerous machine requiring skill and extraordinary care to operate.

2. That defendant failed in its duty to warn plaintiff of the dangerous character of said machine, and to properly instruct him how to operate it.

The testimony disclosed that another question entered into the case, which related to the “self tripping” or action of this machine when put into operation in crimping the iron plate in successively striking the plate. When the foot pressed on the treadle to cause the die to come down once, it sometimes, upon the single pressure, would immediately and rapidly descend two or three times. The proof was clear and without dispute that this machine did sometimes'so operate; that this was known to the foreman of the shop, and only occurred when the machine was out of repair.

Defendant claimed that, under the pleadings and the evidence in the case, plaintiff could not recover, and requested the court to direct a verdict for defendant. The trial judge denied this motion, and, in charging the jury, held that there was no question of repair in the case; that no negligence was assigned upon any want of repair in the machine; that the first question for the jury to find was whether or not this was a self-tripping machine, and, if they so found, then to find whether the dangers incident to its self tripping were so apparent that they would be understood and appreciated by a boy of his age, or whether sufficient instruction and warning had been given to make him understand and observe and fully appreciate such dangers. Upon the refusal to instruct a verdict for defendant, error is assigned, and specifically upon each paragraph of such charge. The court erred in not granting said motion, and in giving the above charges to the jury. The case was brought upon the theory that, because of the tender years of plaintiff and lack of instruction how to operate this machine, defendant was negligent in putting him at this work. Without dispute, the so-called “self tripping” of the machine, whenever it occurred, was due to the fact that it was out of order and not in safe condition to operate. Under the pleadings and evidence in the case plaintiff was not entitled to recover.

It is not necessary to consider the other errors assigned.

The judgment of the circuit court is reversed, and a new trial granted.

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


author: Ostrander, J.

text:
    LUIZZI v. BRADY’S ESTATE.
    1. Estates of Decedents — Claims—Enlargement on Appeal.
    Where a written claim against a decedent’s estate as filed with the commissioners was for attendance and services during the lifetime and last sickness of decedent, claimant was not entitled, on appeal to the circuit, to enlarge the claim to cover demands for bedding belonging to claimant which was destroyed because of the nature of decedent’s ailment, nor loss of profits to claimant’s business of boarding-house keeper by the dismissal of a number of her boarders in the interest of quiet and proper nursing of decedent.
    2. Same — Appeal — Trial — Evidence — Attempt to Execute Will.
    On appeal to the circuit court from the disallowance of a claim for attendance and services during the lifetime and last illness of a deceased person, evidence that decedent attempted to execute a codicil to her will to add a bequest to claimant in a sum equivalent to her claim was inadmissible.
    3. Same — Error—Cure by Charge.
    Error in admitting evidence that decedent attempted to execute a codicil to her will to add a bequest to claimant in a sum equivalent to her claim was not cured by an instruction limiting the evidence to its bearing on the intent to pay something.
    • 4. Same — Services—Presumptions.
    As to services during the last illness of a decedent for board, room rent, and the board and rent of nurses, presumptions both of law and fact arise that payment is to be made therefor.
    5. Same — Evidence—Relations of Parties.
    In such a case the relations of the parties and the circumstances under which the services were rendered may be shown, and the sum usually paid to persons who render service for hire, and the ordinary charges for rooms and board, are not necessarily controlling.
    6. Same — Question for Jury.
    Where the services and attendance for which claim is made extended over a period of two years prior to decedent’s death, and there is any evidence that there was an understanding that they should be paid for, claimant is entitled to go to the jury.
    7. Same — Statements oe Decedent.
    Statements of decedent tending to show that the services were rendered in accordance with a mutual understanding of the parties that they were to be paid for are admissible when limited to the purpose of showing such an understanding.
    8. Same — Matters to be Proved.
    To entitle a claimant to enforce a claim against a decedent’s estate for attendance and services it is essential to offer evidence from which the value of the services may be found, and whether they remain unpaid.
    9. Same — Statements to Attorney.
    Testimony of decedent’s lawyer as to what decedent said to him on the subject of a proposed codicil to her will, to add a bequest to claimant in a sum equivalent to the amount of the claim, was inadmissible to show the value of claimant’s services.
    10. Same — Evidence—Süeeioiency.
    Evidence taken on the hearing of an appeal from the determination of commissioners on claims examined, and held, insufficient to show a valuation placed by decedent on claimant’s services.
    Error to Wayne; Donovan, J.
    Submitted February 15, 1905.
    (Docket No. 156.)
    Decided May 12, 1905.
    Alice M. Luizzi presented a claim against tbe estate of Alice L. Brady, deceased, for services rendered. Tbe claim was allowed in part by tbe commissioners, and claimant appealed to tbe circuit court, where there was judgment for claimant, and defendant brings error.
    Reversed.

      Moore & Moore, for appellant.

      John J. Jackson, for appellee.
   Ostrander, J.

Alice L. Brady died testate September 17, 1902. Herestate was valued by appraisers at$21,216.-85. A total of $18,865.57 of claims was presented to tbe commissioners, of which $11,786.59 was allowed. The specific legacies in the will are $3,130, and a residuary-legatee is named. Two appeals are pending, involving $6,139.75 of the disallowed claims. One of the claims presented was that of appellee, the demand being in the following' form:

“Deteoit, Mich., November 20, 1902.
“Estate of Alice L. Brady, Deceased, Dr.
“ To Alice M. Luizzi.
“ Attendance and services during lifetime and last sickness.............................$2,500.”

The commissioners allowed $500 of this claim and disallowed the remainder, and claimant appealed to the circuit court for Wayne county, where the appeal was tried by the court and a jury, resulting in a verdict for the entire demand. The errors assigned relate principally to the enlargement of the claim in the circuit court, to the admission of testimony showing that the deceased attempted during her last moments to execute a codicil to her will in favor of claimant, and to the charge of the court.

It appears that Mrs. Brady was left a widow in November, 1900; that her husband had conducted a business in Detroit, which business she later assumed to manage, and to which she devoted a great part of her time until she died. She had no children. Claimant kept a boarding house and Mrs. Brady became acquainted with her a short time after the death of her husband, when she went there to board, and where she remained a boarder for nearly a year. A friendship seems to have resulted, of which Mrs. Brady often made mention, and is evidenced by the fact that at the home of one or other, or away from home, they were frequently together, and by the further fact that Mrs. Brady, nervous and somewhat hysterical of temperament, called frequently upon claimant for the attentions and services which only a friendly person of her own sex could give her. There is testimony to the effect that, beginning in October, 1901, and with one interval, continuing to the time of her last illness, Mrs. Brady gave her time to her business from 9 o’clock a. m. until 9 o’clock p. m., sometimes until midnight, lunching down town, frequently getting a cup of tea late at night at claimant’s home. There is also testimony to the effect that in October, 1901, and thereafter, Mrs. Brady spoke of doing something for claimant, whom she described as a hardworking woman, and that she hoped some day to buy her ahorne. Just before Christmas, 1901, Mrs. Brady underwent an operation at a hospital and before doing so, and on December 19, 1901, she made her last will. In this will there is no mention of claimant. She left the hospital during January, 1902, occupying herself again with her business until August 17, 1902, when she became ill, was taken to claimant’s house, and there died of typhoid fever. An hour before she died she sent for a lawyer, who prepared a codicil to her will, the intended beneficiaries of which were claimant and a Richard Tregaskis. She died while the instrument was being drawn. Two professional nurses were employed for Mrs. Brady during her last illness. She had, at the time of her last illness, something like $6,000 on deposit in banks. Upon the trial no testimony was offered of the value of any attendance or of any services rendered by claimant. Counsel for claimant sought to prove that various articles of bedding belonging to claimant were, because of the nature of the decedent’s ailment, required to be destroyed, and that claimant dismissed a number of her boarders in the interest of quiet and proper nursing of decedent. No testimony was given as to the value of these articles, or the amount of any loss resulting from discharge of boarders. To this testimony counsel for the estate objected that the claim presented was for attendance and services, and that to admit such testimony would be to enlarge the demand. Upon the objection being made, the court said:

“That is a very close case — whether that comes under the rule. I think it does. I think the statute of amendments is so broad in our State, and it goes on to say that the court shall have power to amend any process or pleading or proceeding for the furtherance of justice at any stage of the proceedings. Now, if you want to put in a claim, you may. *.. * *
“Mr. Moore: We object on the ground that the issue cannot be broadened.
‘ ‘ The Court: I don’t think it can be made any larger.
Mr. Moore: I object to the court’s amending, because the claim, as presented in probate court, cannot be enlarged or added to on appeal.
The Court: I will say that we have not added to the ad damnum clause. We haven’t asked for any more than they ask for there.”

It was further objected that the testimony was incompetent and immaterial. The objections were overruled, and the testimony admitted. No amendment of the claim was made. This testimony should have been excluded. Patrick v. Howard, 47 Mich. 40. Counsel for appellee says, in his brief, that testimony concerning these items “was given before the commissioners oh claims the same as at the trial, and is a proper charge under the expenses of the last sickness, and further comes under a long line of decisions holding that such a charge is a charge of necessity, and is always allowed as a preferred claim, the same as funeral expenses.” The question before us is not whether these matters might have supported a claim for their value against this estate. A written claim was filed in probate court. The claim does not lack formality. The record does not inform us of the course of the proceedings before the commissioners with reference to this claim. Undoubtedly, rules governing the sufficiency of pleadings are not to be applied to claims filed in probate court. Great latitude as to the form and the amendment of claims is and should be permitted before commissioners on claims. Comstock v. Smith, 26 Mich. 306.

In the absence of a bill of particulars or any demand on the part of the estate for a more express and specific statement of the claim than the one filed, the court would construe with liberality the words “attendance” and “services,” and admit proof of all acts fairly coming within the meaning of the words. The form of the claim, by which we are governed, affords no indication that it was meant to cover demands for property destroyed, or for loss of the profits of a business, to which the proof in question was addressed. This court has been in several cases called upon to pass upon a similar objection. In none of the decisions has the rule of Patrick v. Howard been overturned. Grimm v. Taylor’s Estate, 96 Mich. 5; King v. Brewer, 121 Mich. 339; Allen v. Fields’ Estate, 124 Mich. 466; Dayton v. Dakin’s Estate, 103 Mich. 65.

Upon this subject, the court charged the jury as follows:

“ In estimating the valueof the services rendered during the last sickness you should consider the loss to Mrs. Luizzi’s business, being some fourteen or fifteen boarders there, and the testimony being uncontradicted. She sent them away under the agreement with Mrs. Brady to pay for her loss.
“You will also take into account, in the estimation of the value of the services of the last sickness, the loss of mattresses, bedding, and other things, and pillow slips, and at the last the board and room rent of the two nurses and Mrs. Brady during the time as not being boarders then when she was taken sick.”

Counsel for claimant, over objection, introduced testimony of what decedent said to her lawyer with respect to the terms of the proposed codicil to her will. The first witness, a nurse, testified:

“ She said she wanted to leave Mrs. Luizzi $2,500 for a home. That is all I remember.”

On motion to strike out this testimony, the court said:

“I want to say so that the jury can get this. I will not say that the estate is bound to give this amount, or that you are bound to give this amount. In the Dickerson Case they gave — and sustained in the Supreme Court— they gave the value of the farm which the old gentleman said, ‘ You may have the farm when I am through with it.’ They gave the value of it as bearing upon that question only. It isn’t arbitrary. If he had said, ‘ I will give you that lounge, or that chair, or that stove,’ that would be a complete gift, and the will for that personal property xight then; but this is only bearing upon her recognition of the services, that the jury may take it into account that she recognized something as going to the woman. They have that subject before them. It isn’t arbitrary on that account.”

By other witnesses the same evidence was offered, and was received. Whether the proposed legacy was to be made to claimant, and to be money, or whether a sum was to be used by the executor to buy a home, does not clearly appear. The objections to this testimony, and the •exceptions taken to the charge of the court upon the same subject, will be considered together.

The charge to the jury shows that the following language was employed:

“About 23 years ago — just a little more than 23 years •ago — when the law was unsettled in this State, one of the counsel in this case, and the one who reads you this ■decision, brought before the Supreme Court a case for services, and I read what the learned judge said (Judge Cooley) in the 50 Mich., page 37 [Dickerson v. Dickerson]:
“ ‘ A son is entitled to recover from his father’s estate the value of his services in working his father’s farm, and taking care of his parents until their death, if his father applied to him to do these things and promised that he should have pay for his services, and also that after his death he should have the farm, and if the value of the support and services exceeded the value of all he obtained .from the farm, and no arrangement was made by which it really became his property.’
‘ ‘ I can make that plainer in his own words: The young man, Dickerson, took his father and mother over to his home to take care of them.' They became old. They had no pay arrangement, except the old gentleman said they should be well paid, and they should have the farm when he got through with it. In proving up the services, inasmuch as the farm could not be deeded by a verbal talk of that kind, they allowed the value of the farm as bearing upon the question before the jury as to what he intended to pay for the services. The same doctrine has been handed down now for several years. In the 106 Mich. [page490], in the Williams Estate, a verbal contract to deed land to an adopted girl may be shown to prove the intent to pay for the services. Again, in the 107 Mich. [Salmon v. Wood, 107 Mich. 506], a daughter suing for her services, it was proven that the father promised to pay for the services, and intended to deed the farm, and did deed the farm, but, the wife having failed to join in the deed, and it being a homestead, theMeed was void. It was held it was proper to prove the value of the land as the measure of what she was to be paid for her services — prove that verbally. - And a very recent case (in which Mr. Moore comes back into court again) on verbal evidence to show intent of the party, is reported in Crippen v. Adams, 132 Mich. 31, decided December 16, 1902, where out here at Plymouth, a man expressed on his dying bed and before that time that he wanted to pay his domestic something if he could; that he had some stock or something that he was anxious to turn over — at least $500 — and in going after the stock they brought forward $4,500. The Supreme Court held his intent could be carried out, but not the $4,-500; his intent, he having expressed the idea of $500. These cases here only show you how they regard these claims that have been made, and that we have in this case.
“I charge you then, first, for the plaintiff, as follows: Under the evidence in this case your verdict should be for the claimant, Mrs. Luizzi, and the only question for you to consider is the value of the services rendered. * * * And in fixing the amount the plaintiff is entitled to recover you may consider the codicil and the conversation in regard thereto as bearing upon the intent to pay for the services. In determining the question as to whether there was any understanding between the deceased and claimant, Mrs. Luizzi, to compensate her for services you may take into account the attempted making of the codicil; that is, as bearing upon the intent to pay something.”

It is true that the learned trial judge said more than once that he admitted this testimony upon the theory that it was competent as showing an intention to pay for services rendered — to negative the idea that the services were considered by decedent as gratuitous. When counsel offered this matter, he stated to the court:

“I am not offering this to show the amount. It is right to go to the jury as showing whether there was any intention or whether there was any understanding.”

In his brief counsel for claimant says:

“We submit there was no error in the charge of the court. Nowhere was the conversation in regard to the proposed codicil admitted as bearing upon the amount that should be paid, as claimed by counsel for the estate; but even admitting, for the sake of argument, counsel’s contention, even then there would be no error in allowing the jury to consider the amount mentioned as having a bearing upon Mrs. Brady’s estimate of Mrs. Luizzi’s services, the jury having found there was an understanding to pay for such services, the cases holding that this evidence is admissible for this purpose.”

We are of opinion that what the court said in admitting this proof and in the charge to the jury amounted to an invitation to the jury to allow the demand at the sum of $2,500. This conclusion is aided by the fact, already mentioned,, that no testimony of the value of her services was introduced by claimant, and that the amount of the claim presented is $2,500. The testimony of the amount of the proposed bequest should have been rejected as matter of law. Its admission was not cured by the charge of the court, and the testimony was plainly prejudicial to the estate.

It is the theory of claimant, evidenced by the claim filed and by statements made by her counsel, that she performed services for decedent under circumstances whiph require that she be paid for them what they were worth. The proofs support this theory. Counsel for the estate admit this. It was not matter of contention that claimant is entitled to have allowed to her whatever the attendance and services, proved to have been rendered, are' reasonably worth. The questions of fact were, what was the extent of claimant’s performance, and what was it reasonably worth? It is not contended that claimant rendered any services in consideration of a promise to give her $2,500, or any other sum, by will, or at the death of decedent, or at any other time. It is not claimed that services were rendered in consideration of a promise to buy her a home, or to leave money by will to buy a borne. It is apparent, therefore, that many of the cases relied upon by counsel, some of which the court brought to the attention of the jury, are not in point, even if the testimony fairly disclosed the fact that decedent proposed to change her will in order to pay claimant for services. In these cases—In re Williams’ Estate, 106 Mich. 490, Sammon v. Wood, 107 Mich. 506, and similar cases — the contract asserted and proved or the understanding relied upon was that for the services performed the specific property was promised in payment, and in one, at least, of the cases, conveyance of the property was actually made by decedent, but failed of being effective in law. In the opinion in Re Williams’ Estate, the court undertook to distinguish between holdings like the one in Hillebrands v. Nibbelink, 40 Mich. 646, in which the familiar rule that no rights can be predicated of an executory contract to convey land resting wholly in parol is applied to the claim of a son against the estate of the father, and cases where the land, or other specific property bargained or promised, has been earned by performance of services pursuant to agreement or understanding.

It is evident, also, from the record, that claimant sought to recover for services and attendance which in law fall into two distinct classes, and, as the case must go back for a new trial, some analysis of the claim is undertaken. For such services as were given during the last illness of decedent, her board, room rent, the board and rent of the nurses, if furnished, there are clear presumptions, both of fact and of law, that they were to be paid for, and were in no sense gratuities. No proof was required of any contract to pay for them other than the law implies. O’Connor v. Beckwith, 41 Mich. 657. Undoubtedly, the relations of the parties and the circumstances under which services were rendered may be shown, and the sum usually paid to persons who render service for hire, and the ordinary charges for rooms and board, are not, necessarily, controlling in cases like the one before us. But claimant was permitted to introduce proof, also, of attentions extending over a period of some two years. That these attentions were sought by and grateful to decedent seems clear, and counsel claims that they were rendered in accordance with a mutual understanding of the parties that they were to be paid for. To support this position, evidence of these attentions, and of what decedent said about them, was admitted; and without distinction, and without any evidence of the value of any of the services claimed for, the whole matter was submitted to the jury to make an allowance to claimant. We think claimant entitled to goto a jury upon this proposition if any testimony is produced warranting the inference that there was such an understanding as is asserted. And Lathrop v. Sinclair, 110 Mich. 329, and other cases cited by counsel, are to the effect that statements made by decedent may be received in evidence to show such an understanding or agreement. But such testimony should be limited to the purpose for which it is admitted, and in cases of this nature, as in others where a demand is asserted, testimony should be offered from which the jury may find the value of the servioes performed, and whether they remain unpaid for.

The contention of counsel for claimant that what Mrs. Brady said to her lawyer on the subject of the proposed codicil was properly admitted as bearing upon the estimate which Mrs. Brady placed upon the value of claimant’s services is not sustained. The testimony of Mr. Burton, who was called to make the codicil, was:

Q. Will you state to the jury what she said? * * *
A. That she wanted me to draw a codicil to her will. “ Q. What did she say as to the terms of that ? * * *
“The Court: Never mind as to the terms, but what was the central purpose — leading purpose — it was made for, if she said anything, Mr. Burton?
“A. She said she wanted to give Mr. Tregaskis and Mrs. Luizzi — ■ * * *
“ Q. Wanted to give them for what?
“A. She didn’t state what for, anything further than what she wanted done with the money. She did state that as far as Mrs. Luizzi was concerned.
Q. What was that ?
“A. For her to purchase a home.”

Add to this the statement made by decedent to Mr. Tregaskis that: ££ She hadn’t paid her, but said she intended at some time to give her a home; said she was a hardworking woman; her boarders worked her, and that she wanted to compensate her for it, and she said some day she hoped to buy her a home.” .

To the nurse Wier:

££ She said she wanted to remember Mrs. Luizzi for her kindness to her through life. * * * She said she wanted to leave Mrs. Luizzi $2,500 for a home.”

To the nurse Grow:

“Mrs. Brady said to me when she lived in the Savoy Flats that Mrs. Luizzi had been the best friend she ever had, and she expected to recompense her for what she had done for her, and she did not want any one to think she was doing it gratuitously. * * *
“ She said she wanted to arrange her business matters to leave something for Mrs. Luizzi to buy a home. She said she had intended to do it, but hadn’t done it, and she wanted to do it if she had got to die. * * *
“ She said she wanted to add this codicil to her will, and she wanted to leave Mrs. Luizzi this amount — I don’t know whether you want this amount, but $2,500 — $2,500 to buy herself a home. * * *
“ Well, for services she had rendered and the many little kindnesses, and she had been the best friend she ever had, she said, and she felt it was no more than her duty. * * *
“ She said she was the best friend she ever had, and she expected to compensate her fully for what she had done.
The Court: What words did she use ?
“A. Substantially recognize her. * * * She never had repaid her for what she had done, and could not repay her in that way, but she intended to do something for her when she got her business in shape.”

Another witness: “ Mr. Larm, as soon as I can get my matters in shape, I will fix it for Mrs. Luizzi so that she will not have to work so hard ” — and we have all the proof upon the subject. That these statements are evidence of a valuation by decedent of claimant’s services is denied; that they are evidence of unpaid services is doubtful; that they are evidence of bounty is clear.

The allowance of the claim must be set aside, with costs, and a new trial granted.

Carpenter, Blair, Montgomery, and Hooker, JJ., •concurred.


text:
    LAMB v. LAMB.

    1. Partnership — Creditors—Fraud—Laches—Relief.
    Where certain creditors of a partnership and one of the partners, without the participation of the other, acquired, by foreclosure of a mortgage theretofore given to secure the creditors, the assets of the partnership, under an agreement that when the creditors had been paid their debts the assets should be returned to the participating partner, the nonparticipating partner did not lose his equitable rights by the failure to assert them for five years thereafter.
    3. Same — Corporation—Interest of Partner.
    The creditors and the participating partner having thereafter ■organized a corporation, with the partnership assets as its ■capital, the nonparticipating partner was entitled to have whatever actual interest the participating partner had as shareholder in the corporation treated as an interest for the benefit of both.
    S. Same.
    He was also entitled, on payment to such creditors of the amount still due them, to receive an assignment of their stock in the corporation, subject to an accounting between the partners.

      Appeal from St. Clair; Law, J.
    Submitted February 17,1905.
    (Docket No. 177.)
    Decided May 12, 1905.
    Bill by Hosea Lamb against William J. Lamb and others to set aside a sale of partnership property, the appointment of a receiver, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Reversed.

      A. E. Chadwick and J. B. Mcllwain, for complainant.

      Avery & Walsh, for defendants.

       Rehearing denied June 29, 1905.

   Ostrander, J.

Complainant, a farmer living in St. Clair county, some time prior to 1889, bid in the stock in trade of a co-operative store at Jeddo, sold because the business was not profitable, and purchased by complainant, a stockholder in the concern, with the purpose to save his investment. The purchase price was about $650. He employed his nephew, the defendant William J. Lamb, then 18 or 19 years of age, to manage the store. In February, 1889, a partnership called Lamb & Lount was formed. The partners were Hosea Lamb, William J. Lamb, and Thomas Lount. Thomas Lount contributed $400 to the capital stock, which at this time was worth, according to complainant, $3,500, and according to William J. Lamb was worth $3,000, and William J. Lamb assumed and promised to pay a debt of Hosea Lamb of $500, evidenced by what is called the “Avery note.”' The interest of William J. Lamb was a one-fourth interest' in the assets, and it is probable that Lount’s interest was the same. Lount remained in the business about four-years, and then retired. Upon what terms he retired, and how he was paid, the record does not seem to disclose. Thereafter Hosea Lamb and William J. Lamb conducted the business. On November 18, 1895, the firm was indebted to various persons, among whom were Pascal Lamb, Silas S. Arnot, and F. Saunders & Co., of Port Huron. The first two were liable as indorsers for firm paper, and the last was a wholesale concern, or whom goods had been purchased on credit. Complainant, Hosea, had in June, 1895, conveyed to his wife by mortgage substantially all of his real and personal estate, excepting his interest in this business. Learning of this fact, these indorsers, claiming also that the business was running behind, insisted upon security. As a result, a mortgage was executed by Hosea Lamb and William J. Lamb, and their respective wives, on November 18, 1895, to Silas S. Arnot, trustee, conveying the assets of the firm, including the store building and the lot upon which it was erected. This mortgage contained the usual provision for returning to the mortgagors any sum remaining after payment of debts. It provided for public or private sale of the mortgaged property. It was properly recorded as a real-estate, and filed as a chattel, mortgage, and under the supervision of the trustee William J. Lamb continued to carry on the business. In the following April a foreclosure of the mortgage was attempted, and upon a public sale of the assets they were bid off by Pascal Lamb — the merchandise for $1,200, the real estate for $700, and the accounts for $100; a total of $2,000. The sale was made under an arrangement, later put in writing and signed, between Pascal Lamb, Arnot, Saunders & Co., and William J. Lamb, to bid in the property in the name of Pascal Lamb, to turn possession thereof over to William J. Lamb as trustee, to continue the business, and out of it to pay and discharge the cost to Arnot of his trust under the mortgage, to pay obligations upon which Arnot was liable, to pay obligations upon which Pascal Lamb was liable, to pay the debt to Saunders & Co. When these debts were paid, the property remaining was to belong to William J. Lamb. This instrument is dated April 23, 1896. Under itsterms the business was conducted until March, 1901, when, certain unsecured creditors having made levies upon the property, a corporation was formed, called the W. J. Lamb Company, with an authorized capital of $6,000, with 600 shares. Of this, according to the articles filed, William J. Lamb held 1 share, Pascal Lamb 211 shares, Fred J. Dixon (Saunders & Co.) 310 shares, Silas S. Arnot 78 shares. The first annual report of this company recited ownership of real estate valued at $1,000, actual value of personal estate $6,143.76, total indebtedness $2,401.37. The assets of this corporation are those of the firm of Lamb & Co., changed and augmented by the continuance of the business. After the sale in April, 1896, complainant and defendant William J. Lamb each employed a bookkeeper to examine the books of the partnership and to make and state an account as between the partners. The examination was made, the accounts of the partners as shown by the books were drawn off, and certain resultant or deduced statements made by one, at least, of these examiners. After the sale complainant .seems to have been excluded from the business and treated as an outsider. In January, 1901, he filed his bill in this cause, in which he charges a conspiracy betweeñ Arnot, Pascal Lamb, William J. Lamb, and Saunders & Co. to obtain the chattel mortgage, to foreclose the same, and bid in the property for themselves, with the ultimate purpose to defraud him of his property; and he asks for a receiver of the firm assets, and a decree “setting aside and declaring void any sale, or pretended sale of said store and lot composing the real estate ” of the firm,- an accounting for rental thereof, and an accounting between defendants and complainant “as to his interest, right, and title to the assets of said firm, and the amount of indebtedness individually and personally owing by said William J. Lamb to your orator. ”

Each of the defendants answered. Proofs were taken in open court. The court declined to hold the mortgage or the sale of the personal property thereunder to be void. The attempted sale of the real estate was held ineffective, and the mortgage as to that to be an existing lien and security in favor of the creditor defendants. An interlocutory decree was ordered, requiring Arnot, Pascal Lamb, and Saunders & Co. to prove in court the amount of any indebtedness in their favor existing at the date of the mortgage yet unpaid; that after a determination of such indebtedness a decree be entered giving complainant a fixed time in which to pay such indebtedness and redeem the real estate, and, in event of such payment, an accounting could be had with William J. Lamb as to partnership matters. After a delay of several months, the court, in an order reciting the earlier findings, and that solicitors for complainant had stated that they desired no such interlocutory decree, entered a decree dismissing the bill.

The record in the case is in such shape that we cannot attempt to make and state from it an account. A considerable number of exhibits were used at the hearing which are not returned to this court. Defendants were called as witnesses by the complainant, and, excepting their testimony and certain papers referred to in their cross-examination, no proof was introduced on -the part of defendants. The mortgage recited an indebtedness to various persons of $7,000, but did not recite the respective indebtedness to any creditor, nor name any creditor excepting those preferred. We do not believe the claim of complainant that he knew nothing or little about the condition of the business at and before the time the mortgage was gi ven, or that he was in any way deceived or improperly persuaded to execute the mortgage. If he made any objection to the giving of the mortgage, it was because it provided for preferences, instead of for an equal distribution of the firm assets among creditors. There is abundant evidence of a condition warranting the demand by these creditors for security. No creditor attacks the mortgage. Complainant sat by for five years before he sought to question the transaction. Meantime the business had been conducted by the diligent creditors in such way that some, at least, of the unsecured creditors have been paid. The business is a going one, and the assets are probably not less in value than.were the firm assets which were mortgaged. We do not think that equity requires that either the mortgage or the sale under it be set aside and treated as void, nor that complainant should have presented to him now the assets of this corporation discharged from claims of thedefendant.creditors. Whether the assets of the firm in November, 1895, were equal, at fair value, to'the indebtedness of the firm, we cannot, with certainty, determine. It is matter of common knowledge that a fund consisting of merchandise and book accounts, if attacked and dispersed by creditors, must be considerably larger than the indebtedness enforced if it produces sufficient to pay the debts. And in this case there is evidence warranting the conclusion that the assets of Lamb & Co. fairly sold at public auction would have produced a sum less than the amount of the Arnot, Pascal Lamb, and Saunders & Co. indebtedness.

What, then, does equity require shall be done in favor of this complaining partner, who has for years slept upon whatever rights he possesses ? In our opinion, equity permits us to proceed at all only because defendants have agreed .among themselves that when the creditor defendants have been paid their debts the assets shall be returned to William J. Lamb. William J. Lamb was the partner of complainant, and the arrangement he made with the creditor defendants may be treated as made for the benefit of the partnership, because his duty as partner was to act, with respect to the partnership assets, for the interest of the partnership. This arrangement will be held to obtain between the shareholders of the corporation. Whatever actual interest William J. Lamb has or is entitled to have as shareholder in the corporation under the agreement stated will be held to be an interest for the benefit of himself and complainant. Complainant is entitled to pay to defendants, Arnot, Pascal Lamb, and Saunders & Co. such sum or sums as an accounting shall show to be still due to them, and to receive from them, upon such payment, an assignment of their stock in the- corporation which he will hold subject to an accounting to be had between himself and William J. Lamb as partners.

The decree of the court below will be reversed, and the record remanded, with directions to enter an order preserving the present status of the assets and capital stock of the W. J. Lamb Company, to make and state an account showing to what extent the debts of the creditor defendants existing November 18, 1895, have been paid and the amount remaining unpaid, the amount of current indebtedness of the corporation, and upon the coming in of such account a decree will be entered in conformity with this opinion, permitting complainant to pay to each of said creditor defendants the sum so found to be unpaid, and upon such payment to receive from said defendants an assignment of their shares of the capital stock of said company. In default of such payment, and upon the motion of complainant, the assets of said corporation, including the real estate, the title to which will, in said decree, be quieted, will be offered for sale under the order and direction of the court. If, upon such sale of assets, the sum or sums bid shall not exceed the amount of the indebtedness as determined by the court and the costs and expenses of sale, then title to all of such property and assets, including the real estate, shall vest in said corporation, discharged of any claim or demand of complainant. If the sum or sums bid shall exceed said demands, then said sale shall be concluded, the fund resulting be brought into court, and out of it the court will order paid the current indebtedness of the company, the amount found due to Arnot, Pascal Lamb, and Saunders &Co., in the order named. So much of the fund as remains will be held and treated as a partnership fund, to be distributed to complainant and defendant William J. Lamb upon such basis as an accounting between them as partners shall warrant. Nothing in this opinion dr in said decree shall, in any event, prevent an accounting between the partners, Hosea Lamb and William J. Lamb, in this case, if complainant so desires.

Complainant will recover from defendants the costs of this appeal.

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


author: Grant, J.

text:
    OPPENBORN v. AUDITOR GENERAL.
    Taxation — Delinquent Lands — Auditor General’s Charges —Liability op County.
    It is the policy of the law to make losses occurring through defective tax proceedings chargeable to the State, county, or municipality through the default of whose officers the loss has oocurred, and the auditor general is justified in including in his petition for sale lands reported to him as delinquent and charging the expense thereof to the county, though the taxes were in fact paid, but not reported to him, before the expense became a lien, and he likewise may properly charge to the county the expense connected with reported delinquents in cases where, through defective description, no tax could be collected. Sections 3882, 3914, 3918, 1 Comp. Laws.
    Mandamus by Christian A. Oppenborn, treasurer of Alpena county, to compel James B. Bradley, auditor general, to expunge from the records certain charges against the county of Alpena.
    Submitted February 7, 1905.
    (Calendar No. 20,900.)
    Writ denied May 12, 1905.
    Section 59 of the general tax law (1 Comp. Laws, § 3882, as amended by Act No. 262, Pub. Acts 1899) reads as follows:
    “Any person may pay the taxes or any one of the several taxes, on any parcel or description of land returned as aforesaid, or on any undivided share thereof, with interest computed thereon from the first day of March next after the same were assessed, at the rate of one per cent, per month or fraction thereof, with four per cent, as a collection fee, to the county treasurer of the county in which the lands are situated, at any time before they are sold: Provided, That on all descriptions of land on which any of the several taxes remain unpaid on the first day of October next preceding the time prescribed for the sale thereof, there shall be charged an additional one dollar for expenses and which shall thereafter be a lien on said land and when collected shall belong to the general fund of the State.”

      Section 91 of the same law (§ 3914) reads as follows:
    “All losses that may be sustained by the default of any township officer in the discharge of any duty imposed by this act, shall be chargeable to such township. All losses by default of any county officer shall be chargeable to such county, and all losses by default of any State officer shall be chargeable to the State.”
    Section 95 (§ 3918) provides:
    “ If the auditor general shall discover before the sale of any lands as aforesaid, that for any reason they should not be sold, he shall cause the same to be withheld from sale; and if the error originated with the township or county officers, the amount of such taxes shall be charged against the county from which the- same was returned; if such error was made by a township officer, the amount thereof shall be charged by the county treasurer to the township in which such error occurred.”
    The petition in this case sets forth that in the quarterly statement made by the auditor general to the county of Alpena there appears as charges against the county something over $1,000 as expense and interest on expense. This consists mainly of the charge of $1 for each description of land reported by the county treasurer to the auditor general as delinquent for taxes, as per section 59, and this amount was added to descriptions of land upon which the taxes had been paid to the county, city, or township treasurer before the said $1 had become a lien against the lands, and upon others where there were erroneous descriptions, or no such subdivision of land as stated in the petitions. The petitioner asks that the auditor general be required to expunge these items from the account and from the records of his office as unlawful and void.

      Henry K. Gustin, for relator.

      John E. Bird, Attorney General (Charles W. McGill, of counsel), for respondent.
   Grant, J.

(after stating the facts). The city, comity, and township treasurers failed to report to the auditor general that the taxes already reported delinquent had been paid. The auditor general Has no means of determining when taxes are paid after return, except as he may be informed by these officers. He was therefore justified in including these lands in his petition for sale. The auditor general was not responsible for incurring this additional expense of a dollar for each description; neither was he responsible for the erroneous descriptions. It is the policy of the law to make losses occurring through defective tax proceedings chargeable to the State, county, or municipality through the default of whose officers the loss has occurred. Section 91, above cited; Auditor General v. Bolt, 124 Mich. 185. The defects in these proceedings and the failure to report payments to the local officers after the delinquent roll had been returned to the auditor general are due to the officers of the county and municipalities. The State is not responsible, because no blame attaches to the auditor general. The case falls clearly within Auditor General v. Bolt, supra.

The writ is denied.

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