text:
    LYON v. BALDWIN. LYON v. STATE BANK OF CARSON CITY.
    1. Garnishment — Appearance—Motion—Writ—Appeal.
    By entering a motion to set aside the return of service of a writ of garnishment, the defendant is not precluded from questioning the return of service of the officer, on appeal, the appearance being a special one.
    2. Same — Issue op Pact — Evidence.
    Where the garnishee moved to set aside the return of the officer, relying upon the affidavit of its cashier disputing the return, but did not request to have an issue of fact framed, the determination of the question by the trial court, if supported by evidence, will not be disturbed, on appeal.
    3. Same.
    An order of the court amending the return to conform to the officer’s affidavit is not a nullity, and the service cannot be set aside merely because the copy delivered omitted date and signature of the clerk.
    Error to Montcalm; Davis, J.
    Submitted October 10, 1916.
    (Docket No. 93.)
    Decided December 21, 1916.
    Garnishment proceedings by Edward D. Lyon and another against the State Bank of Carson City, as garnishee defendant of Harriet A. Baldwin and another. From an order denying a motion to set aside a default judgment for want of proper service of the writ, said garnishee defendant brings eiror.
    Affirmed.

      Hawley & Eldred, for appellant.

      A. B. Goodwin and Edwin H. Lyon, for appellee.
   Ostrander, J.

On December 22, 1913, an order entering the appearance of the garnishee defendant and its default for want of a disclosure was entered. The garnishee defendant moved the court January 2, 1914, for an order setting aside the default because of the alleged defective service of the writ. The motion was denied.. A motion to set aside the return of service of the writ was made, based on the files and records in the cause and upon the affidavit of the cashier of the garnishee defendant, which, coming on to be heard, was denied. No other or further appearance of the garnishee defendant was entered. On March 30, 1915, another order defaulting said defendant was entered, and on March 6, 1916, judgment was rendered against the garnishee defendant. The question presented is whether there was a lawful service of the writ upon the garnishee defendant.

Being of opinion that appellant’s appearance must be regarded as special, and that the question involves the jurisdiction of the court to render judgment, appellant is not precluded from raising it on this appeal. Thomson v. Milling Co., 132 Mich. 591, 599 (94 N. W. 188); McCain v. Wayne Circuit Judge, 187 Mich. 73 (153 N. W. 5); Valley City Desk Co. v. Circuit Judge, 139 Mich. 194 (102 N. W. 651). This, is, in effect, a ruling that, when a garnishee defendant appears specially and moves to set aside the writ and its service because by the return of service jurisdiction does not appear, he may raise the point after judgment upon writ of error.

The service is said tó be defective in two respects: One, the original writ was not shown to the person served; the other, the paper delivered to the person served was not a true copy of the original. The original return of the officer to the writ did not show a valid service of the writ. The return, upon motion and by order of the court, was twice amended, and as amended it shows a valid service, unless, a defect in the copy of the writ which was left with the cashier of the garnishee defendant is fatal. The original, tested as of October 3, 1913, is signed, “Nellie Taylor, Dept. Clerk.” The purported copy delivered to the garnishee defendant did not contain a copy of this signature, and it lacked, also, the particular day of issue, namely, “3rd.” The month, October, and the year were correctly stated in the paper delivered.

It is the contention of the appellant that the affidavit of the cashier, in which he deposes that he was not shown the original writ, stands undisputed, and what is said therein must be accepted as true. To the suggestion that the files and records, when contrasted with the said affidavit, disputes it, the appellant, in a reply brief, says that the motion and affidavit together were in the nature of a plea in abatement, and, if the court found an issue of fact presented, it was the duty of the court to require an issue to be framed.

The files and records, at the time the motion to set aside the return was heard, showed a return of the officer, from which it appeared that the original writ was shown to the person served. They showed further an affidavit of the officer in which he stated that he did show the original writ to the person served. The garnishee defendant did not plead in abatement, but, as has been stated, rested his motion to set aside the return upon the files and records and the affidavit of its cashier. The court did not refuse to try the question on motion and affidavits, as it did in Sherrill v. Railway Co., 161 Mich. 495 (126 N. W. 830) (see Daniels v. Railway Co., 163 Mich. 468, 470 [128 N. W. 797]), but decided the motion. Here, as in the cases referred to, the defendant is attacking jurisdiction for want of proper service of process. There was no suggestion, by the moving party, that an issue of fact ought to be framed (see Stringer v. Dean, 61 Mich. 196, 201 [27 N. W. 886]; Caille Bros. Co. v. Circuit Judge, 155 Mich. 480, 483 [120 N. W. 6]), but the court was asked to decide the questions presented by the motion upon the showing made. The conclusion of the court is supported by evidence and will not be disturbed on this appeal.

The point, made in the reply brief of appellant, that the officer, and not the court, amends a return, which is based upon the fact that the last application to amend was in form made by the plaintiff and not by the officer, has not been overlooked. The application was based, in part, upon the affidavit of the officer. The effort, it must be presumed, was to secure a return of the officer according to the fact. Although the amendment was, in form, ordered by the court, it was an amendment corresponding with the affidavit of the officer and will not be held to be a nullity because of the manner in which it was made.

It seems to be agreed by counsel that there is no staute relating to proceedings in garnishment which expressly prescribes the method of serving the writ. The statute says that writs of summons shall be served by showing the original writ to the defendant and delivering to him a copy thereof. 3 Comp. Laws, § 9994 (3 Comp. Laws 1915, § 12424). Assuming that a good service of a writ of garnishment may be made by complying with the statute referred to, the remaining question is whether the service in this case was good notwithstanding the defects in the copy served.

The original writ was in proper form and bore the seal of the court. It was exhibited to the garnishee defendant. The purported copy left with him advised him that certain persons had begun an action against certain other persons, in a certain court; that an affidavit had been filed wherein it was stated, among other things, that the affiant had good reason to believe, and did, that the State Bank of Carson City, Mich., had property, money, etc., in its hands, or under its control, belonging to one of said defendants. It contained in form a command to make disclosure in writing, under oath, on or before a day certain, and to pay no money and deliver no property to the said defendant. It concluded with the formula, “Witness the Hon. Frank D. M. Davis, Circuit Judge,” etc., and the signature of the attorney for the plaintiff with words describing him as such.

It is the general rule that, if a statute prescribes a method for serving process, the method must be followed. In particular cases, in which a judgment was attacked collaterally, clerical errors, not confusing and not leaving in doubt the command of the writ, or its official character, have been disregarded or amended. The case of Merrick v. Mayhue, 40 Mich. 196, is such an one. And on direct attack it has many times been held that mere clerical mistakes and omissions in the original and in the copy served are not fatal. In Millard v. Circuit Judge, 107 Mich. 134 (64 N. W. 1046), the garnishee summons warned the agent and attorney of the plaintiff, who made the affidavit, thenceforth to pay no money to the principal defend-" ant, instead of warning the garnishee defendant. The trial court held this to be a fatal defect and dismissed the proceeding, which was reinstated by this court, holding that there was an apparent clerical error, which could be^ amended.

“A writ otherwise regular is not absolutely null and void, because its date is blank and it is not signed by the clerk. Such writ is voidable, and may be avoided by a motion to quash it made by the defendant; but if not so avoided, or in some other manner, in the suit, and a judgment is rendered against the defendant by default on such writ, and such judgment is not set aside by motion to the court or by writ of error, it is valid and binding as a judgment.” Ambler v. Leach, 15 W. Va. 677.

See, also, Laidley’s Adm’rs v. Bright’s Adm’r, 17 W. Va. 779. A copy of a summons, not dated, otherwise regular, was served. The omission was held to be a clerical error, without prejudice to defendant. Mayerson v. Cohen, 123 App. Div. (N. Y.) 646 (108 N. Y. Supp. 59). In Henderson v. Graham, 84 N. C. 496, it appeared that the original summons was not signed by the clerk. Special appearance of defendant was entered and a motion made to dismiss the return. At the same t-ime, the plaintiff moved to amend the summons by allowing the clerk to affix his signature. It was held that the amendment should have been permitted. Cases are cited, and some of them reviewed in the opinion of the court. In Austin v. Insurance Co., 108 Mass. 338, the writ of summons used had been signed by a clerk of a court who had deceased and whose successor had been appointed before the writ was issued,'the defendants entered a special appearance, and at the same time the plaintiff moved to amend the writ. It was held, after a review of the authorities, that the amendment should be permitted. The omission of the date of the issuance of a writ, otherwise regular, has been many times held not to be fatal; to be a mere form. Lyle v. Longley, 65 Tenn. 286; Hawkes v. Inhabitants of Kennebeck, 7 Mass. 461; Nash v. Brophy, 13 Metc. (Mass.) 476. So, also, if the seal of the court is omitted. Sawyer v. Baker, 3 Greenl. (Me.) 29, which cites authority also to the point that want of the clerk’s signature to a judicial writ may be considered as an error of the court’s own officer, open to correction. Pepoon v. Jenkins, Cole. & Cai. Cas. (N. Y.) 55. In Rogers v. Farnham, 25 N. H. 511, the copy of the summons bore no date, for which reason defendant demurred specially, and it was held that the suit ought not to abate. In Collins v. Merriam, 31 Vt. 622, the copy of the writ served did not contain the signature of the magistrate. Held, after judgment by default, that the service was not fatally defective. See, also, Cochran v. Davis, 20 Ga. 581.

The service of the writ which was made in the case at bar seems to have so impressed the garnishee defendant that it appeared in court, specially, it is true, and moved that the writ be quashed. It was duly informed by the original that the writ had issued, and the natural and necessary inference was that, by a mere clerical mistake, the date of issue and name of the clerk had been omitted from the copy. An examination of the original would have disclosed a mere mistake.

In my opinion, it must be held that a good service of the writ was made, and the judgment must be affirmed, with costs to appellees.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    MODERN BROTHERHOOD OF AMERICA v. HUDSON.
    1. Insurance — Vested Interest — Contract Rights.
    There is no vested right which passes to a beneficiary who has no contract founded upon valuable consideration passing to the insured. Such vested right is not created by the possession of the policy and payment of the dues.
    2. Same.
    A promise to keep up the payments is not sufficient in law to create in the beneficiary a vested interest in the fund and certificate.
    3. Same — Transfer of Benefits.
    And where one brother agreed to pay all assessments and dues and to take care of his brother in sickness and give his body a decent burial, in consideration of which undertaking lie was made a beneficiary of bis insurance, but tbe latter did not rely on or carry out tbe agreement, and later repudiated it, be could not recover on tbe policy of life insurance.
    4. Same.
    Tbe right of a bolder of a certificate, under a contract of sucb a nature, bas generally been upheld, and especially if bis interest bas become vested.
    Appeal from St. Clair; Tappan, J.
    Submitted October 11, 1916.
    (Docket No. 115.)
    Decided December 21, 1916.
    Bill of interpleader by the Modern Brotherhood of America against Fred Hudson and Guy Hudson to determine the right of the proceeds of a benefit certificate. From a decree for defendant Fred Hudson defendant Guy Hudson appeals.
    Reversed, and decree entered in accordance with opinion.

      Elmer E. StocJcwell (John B. Mcllwain, of counsel), for appellant.

      Burt D. Cady and Lincoln Avery, for appellee.
   Ostrander, J.

The fund claimed by each of the defendants, being the proceeds of a benefit certificate issued by complainant upon the life of Harry Hudson, deceased, has been paid into court. Originally Jane Hudson, mother of defendants and of three other sons, procured to be issued by complainant upon her life a certificate in which her sons were named as bene-' ficiaries. It is to be inferred that at her suggestion her sons George, Don and Harry each procured certificates to be issued upon their lives in which their mother was named as beneficiary. The defendants were older sons and married. The others were unmarried and lived with their father and mother. With the money received from them in payment of board, and with money she earned, Jane Hudson, until her last Illness, paid all of the dues and assessments upon all of the certificates. In this way Harry Hudson was the insured, and his mother was the beneficiary in three certificates, namely, one for $1,000 issued by complainant, one for $1,000 issued by the Loyal Guard, and one for $250 issued by the Metropolitan Life Insurance Company. The mother died December 1, 1910; her husband and her sons Harry and George being at that time members of her family. During her last illness her son Fred paid, he says, with his own money, whatever sums were required to keep the certificates in force, apparently making one payment on them, or some of them — a few dollars. After she died there was talk among the sons with respect to continuing the certificates in force, with a change of beneficiary. Some arrangement was made. What it was, the legal effect of it, and whether it was carried out are debated questions. There was a surrender of certificates, and new certificates were issued, Fred being named as beneficiary in those issued by the complainant and the Metropolitan Life Insurance Company, and Guy being named as beneficiary in the one issued by the Loyal Guard, all upon the life of Harry. After the complainant issued the new certificate, naming Fred as beneficiary, he paid dues and assessments amounting to $48.04; paid all dues and assessments. Harry Hudson died June 25, 1914, having been injured a year earlier, and sick and more or less helpless from that time. He lived with Fred some of this time, and with Guy during the last months of his life. He executed an application for a change of beneficiary in complainant’s certificate from Fred to Guy on or about June 18, 1914, filed it in compliance with the rules of complainant, but no new certificate was issued, because Fred, who had the old one,' refused to surrender it. Guy Hudson contends that, his brother Harry having done all that he could do to secure a change of beneficiaries, the case stands as if a change had been made pursuant to his brother’s wishes and directions. Fred contends that an agreement existed between himself and deceased brother, fully executed by himself by paying all assessments and dues upon the certificate in question, on account of which he had a vested- interest in the certificate (and so in the fund) which estopped his brother from making a change of beneficiary.

The testimony took a rather wide range, involving the alleged agreement between Fred and,Harry; whether Guy and his wife neglected Harry in his last sickness; whether there was a conspiracy between the secretary of the local lodge and Guy to induce Harry to make a change of beneficiary. The court found the charge of a conspiracy unsustained by the proof, found that Guy and his wife took excellent care of Harry during his last illness, and that Harry did all that it was possible for him to do to effect a change of beneficiaries. It was found also that Harry had himself never paid an assessment upon his certificate nor any dues to the local lodge; that Fred paid them from the time his mother died, three years and seven months, until Harry died; that Fred aided Harry by procuring a doctor, furnishing for his use a wheel chair, and some clothing; and that all — assessments, dues, and other contributions — were made by Fred in pursuance of the alleged agreement of the brothers. The conclusion is that Fred acquired a substantial vested interest in the certificate and fund. By the payment of dues he preserved for his deceased -brother the rights and benefits of member of the local lodge, which of itself was a valuable consideration for the •alleged agreement by which Fred became beneficiary of the certificate. There is no finding upon the subject of the terms of the agreement, if one was made, by which defendants took over the certificates upon the life of Harry after the death of the mother, except as above stated, and the further one that there was a mutual understanding that both of the defendants “should aid Harry in case of sickness and death.”

There being in court, in the fund, $958.90, the court directed that Guy should be reimbursed one-half of the funeral expenses, $97, that $100 more should be paid on account of expenses of the last sickness of Harry to Guy’s wife, if no objection was made, and the balanée of the fund, $761.90, was ordered paid to Fred, no costs being allowed to either party defendant.

The conclusions which I have, in substance, stated were written and a motion to amend them was made by Guy Hudson, an amended finding was made, but the eventuality was the same, and a decree in conformity with the foregoing statement was entered, the decree reciting that there was a “mutual understanding and agreement between the said three brothers that defendants Fred and Guy should care for said insured during sickness and bury him after his death.”

In his amended answer to the bill of complaint defendant Fred Hudson, appellee, sets up that the agreement between himself and his brother Harry was that Fred should pay all assessments, dues, and levies made against the said Harry on account of and by virtue of his having said certificate, and, in consideration of such payments to be made, said Harry agreed to name Fred beneficiary in said certificate, alleging further that he (Fred) had paid in accordance with the agreement.

Defendant Guy Hudson in his answer alleges that as an inducement to Harry to surrender the old and procure a new certificate in which Fred was beneficiary, Fred promised and agreed that he would pay all dues and assessments payable to complainant, and, in the event that said Harry became disabled or sick and unable to care for himself, Fred was to aid and assist him, furnish him a home, provide necessary medicine, medical attention, and nursing during such sickness or disability, and, in the event of death, provide for burial and pay the expenses thereof; that Fred did not perform this agreement, but, on the contrary, neglected and refused to aid and provide for Harry during his illness, who became dependent upon Guy for care and nursing, medical attention, and medicines; that Guy made suitable provision, with his wife nursed said Harry, and upon his death provided suitable burial, and thereby incurred expenses which should have been paid by Fred. It is alleged further that upon Fred’s refusal to care for him as he had agreed to do Harry requested the return of said certificate and requested complainant to issue another, naming Guy as beneficiary.

A provision of complainant’s certificate permits an assured member totally and permanently disabled to withdraw in cash one-half the sum payable at death— in this case, one-half of $1,000 — thereby canceling the certificate. The assured, Harry, applied for, and in May or June, 1914, executed, papers for the purpose of securing the sum secured to him by the certificate under said provision thereof. Learning of the contemplated action of Harry in this behalf, Fred procured from the probate court, and had served, a citation in an inquisition as to the mental competency of Harry. The complainant took 90 days, under its laws, to consider the application for payment, and the inquisition in probate court was continued and never brought to a hearing. It is obvious that the inquisition proceeding was instituted for the purpose of preventing the assured canceling the policy by withdrawal of the disability benefit, and equally obvious that there was no foundation, in fact, for any claim that Harry was mentally incompetent.

In Ms testimony, wMdi was received without objection, Fred denies any agreement with his brother Harry to do more than to pay dues and assessments if he was named as beneficiary in the certificates. The testimony of George Hudson was:

“Q. What was said by Harry respecting Ms insurance, or Fred respecting Harry’s insurance?
“A. Harry never said nothing. Fred asked what we were going to do with ours; if we were going to keep, them up.
“X}. Whom did he mean by ‘we’?
“A. Mine and Harry’s.
“Q. What did Harry tell him?
“A. Harry says, T guess I could keep it up.’
“Q. Harry told you he would keep it up?
“A. He said, T was going to drop it.’ Fred said, ‘You may keep it up for a little while, and then you will turn around and drop it after so much being paid into it,’ and he said, ‘If you will turn it over to me, I will pay for it and pay up the dues.’
“Q. Anything else? •
“A. Harry spoke up and says, ‘You will pay up the dues, but this policy is to look after me; I want a burial,’ and Fred, he said, ‘If you will turn it over to me, I will look after you through sickness and after death’; he says, ‘That is what they are for.’ ”

There is other competent testimony to the same effect. There is testimony, too, which upon analysis tends to prove nothing more than this: That Harry could not, probably, make necessary payments, and the certificates would therefore lapse, and that, in view of this fact, his brother Fred made the offer to make the payments if he was made beneficiary. In other words, Fred voluntarily offered to pay, and voluntarily paid, such assessments and dues as were necessary to keep the certificate in force, being under no legal obligation to pay them longer than he pleased.

In Schiller-Bund v. Knack, 184 Mich. 95 (150 N. W. 337), the court considered whether certain facts proved that a beneficiary in a certificate similar to the one in this case had a vested interest therein so that the insured ought not to be permitted to make a change of beneficiaries, stating the governing rule. It was said, among other things':

“We have examined the cases cited in the briefs of counsel, and are unable to find a case in which it was held there was a vested right passing to the beneficiary where there was not an express contract founded upon valuable consideration (moving to the assured) between the assured and the beneficiary.”

It had been held repeatedly that the fact that the certificate was in the possession of a beneficiary named in it and that payments had been made of dues and assessments by the named beneficiary was not enough to create a vested interest or prevent a change of beneficiary. Union Mutual Ass’n v. Montgomery, 70 Mich. 587 (38 N. W. 588, 14 Am. St. Rep. 519); Grand Lodge, A. O. U. W., v. McGrath, 133 Mich. 626 (95 N. W. 739); Metropolitan Life Ins. Co. v. O’Brien, 92 Mich. 584 (52 N. W. 1012).

The distinction which the court made, and which counsel for appellee makes, namely, that because dues were for the benefit of the local lodge and the payment of them retained Harry’s membership in the local lodge, there was therefore a benefit derived by bim from their payment distinct from the benefits resulting from the payment of assessments, is not sound. It is assumed, and nothing to the contrary is made to appear, that a beneficial membership in complainant’s association can be had only by payment of both assessments and dues; the consideration moving to the complainant from the insured for the benefits promised by the certificate and laws of the association is the payment of both dues and assessments. Therefore the promise of Fred, if he made one, to pay assessments and dues, and the payment of them, was not sufficient in law to create in Fred a vested interest in the certificate and fund, and would not limit the right of the insured to change his beneficiary at pleasure.

Assuming that defendant Fred Hudson promised that he would not only pay assessments and dues, but would take care of his brother Harry in sickness and give his body decent burial, in consideration of which undertaking he was made beneficiary in the certificate (a promise which Fred denies that he made), what are the controlling equities? Such a promise was not kept. Fred does not claim that he furnished anything to his brother, doctor, clothing, or use of a wheel chair, in pursuance of any agreement or legal obligation to do so. When in lieu of such assistance Harry proposed to secure from complainant the only thing promised by it which would benefit him in his last illness (he had tuberculosis of the lungs), which was one-half the sum payable in case of death, Fred attempted to prevent such a result. And when Harry found he could ^et neither assistance nor the disability benefit which Ms certificate and the laws of complainant secured to Mm, he changed, so far as his actions could so operate, his beneficiary.

Equitably defendant Fred Hudson is not entitled to rely upon an agreement which he says he did not make, and the court found that he, or he and his brother together, did make, which he did not perform, did not offer to perform, and, so far as statements and actions can be relied upon, repudiated if it was made. The right of a holder of a certificate, of the nature of the one before us, to change his beneficiary at pleasure, is one which this court has uniformly upheld, and the right ought not to be and will not be denied unless it is plain that the beneficiary named in the certificate has by contract and by performance acquired a vested interest in the certificate and fund. The case is ruled by Schiller-Bund v. Knack, supra. In any event equity demands no more than that Fred be repaid the sums he expended for dues and assessments, the remainder of the fund to belong to the appellant, a conclusion which appellant in his brief approves.

The decree is reversed, and one may be entered in this court in accordance with this opinion; appellant to recover costs of this appeal.

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


text:
    POWERS v. DODGSON.
    1. Sales — Uniform Sales Law — Breach of Contract.
    Under Act No. 100, Pub. Acts 1913 (3 Comp. Laws 1915, § 11832), where a present sale of wool occurs, the vendor may not claim any right of retention until the entire price was paid, though he had tendered the wool in performance of the contract, offering to deliver more than the stipulated quantity of a fine grade, that the purchaser declined to take at the agreed price, but offered to pay a reduced amount for the excess quantity.
    2. Damages — Delivery—Refusal.
    Upon the vendor’s declining to deliver goods of which title has passed to the buyer, and disposal thereof to a third party, the measure of damages is the difference between the contract price and value of the goods, when sold to another.
    Error to Barry; Smith, J.
    Submitted October 4, 1916.
    (Docket No. 27.)
    Decided December 21, 1916.
    Rehearing denied April 19, 1917.
    Assumpsit by Serroll Powers against Will Dodgson for breach of a contract for the sale of wool. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Elmer N. Peters, for appellant.

      Colgrove & Potter, for appellee.
    There was conflicting testimony concerning the precise terms of the parol contract which the parties made, a conflict which the jury has apparently resolved in favor of the plaintiff, appellee, and appellant, in presenting his points, assumes the contract to be as plaintiff claims it is. Defendant, appellant, had a quantity of wool, not all of it stored at the same place, for which, to plaintiff, a wool buyer, who had never seen it, he asked 26 cents a pound, finally offering it for 25% cents. Plaintiff said, “I am afraid there is too much fine wool in it,” and defendant said, “Not over 300 pounds at the outside.” Plaintiff said, “If there ain’t over 300 pounds of it, I will give you 25% cents.” Defendant accepted this offer, and $100 was paid upon the purchase price. Plaintiff was to take the wool in two or three weeks. This, in substance and effect, is the bargain testified to by the plaintiff. Defendant testified that when plaintiff inquired what kind of wool it was, he told him he did not know; that a third person had bought most of it for him, and had represented that he bought only one “strictly fine bunch of wool” of 300 or 400 pounds; that there would be, besides, an occasional fleece of fine wool; there would be more than '300 pounds of fine wool. Two weeks later, they began to sack the wool, and sacked and graded some 22,000 pounds, the grading showing 2,893 pounds of fine wool. No sacking and grading was done at the other storage points. There was conversation about the quantity of fine wool found. The market price of this was less than the price for the other wool. Plaintiff declined to accept and pay for the wool at the agreed price, offering, however, to take it and pay a less price for the fine wool in excess of 300 pounds. No price for the fine wool was agreed upon, defendant claiming that the sale was of the lot at the price already fixed. The.payment of $100 was made November 28, 1914. Argument about the price of the fine wool went on, at intervals, until some time in January, perhaps in February, 1915. Defendant sent to plaintiff a check for $117.50, being for the payment on the purchase price and some item of expense attending the sacking of the wool, plaintiff refusing to accept it. In February defendant sold the wool, the price of which had. considerably advanced. In his declaration plaintiff alleges that he bought from defendant 30,000 pounds of wool for 25% cents a pound, of which not more than 300 pounds was to be fine wool; that in sacking it there was found 2,000 pounds and upwards of fine wool, and defendant refused to allow plaintiff to have the wool unless he would pay for all of it at 25% cents a pound; and, although plaintiff was willing to pay the purchase price of the wool as agreed, defendant converted the same to his own use, to plaintiff’s injury and damage. The declaration contains also the common counts in assumpsit. The jury was instructed, in substance, that if the defendant’s version of the transaction was found to be true, plaintiff could not recover more than $100, plus the sum he paid out for sacking the wool and the value of the sacks, if defendant sold the sacks with the wool; that if they found plaintiff’s version to be the true one, plaintiff could also recover the difference between 25% cents per pound and what the wool was worth on the day defendant disposed of it to others. A verdict was returned for plaintiff for $1,105.97, for which sum a judgment was entered, with costs. A motion for a new trial was denied. In his brief, defendant, appellant, states his contention as follows:
    “It is the claim of appellant that the contract between the plaintiff and defendant, which is the basis of plaintiff’s action, was an unconditional sale of a specific 30,000 pounds of wool in a deliverable state, warranted to contain not to exceed 300 pounds of fine wool, and that the title to the wool passed from the defendant to the plaintiff at the time of the making of the contract on the 28th day of November, 1914; that the defendant had the right to the possession of the wool until the purchase price was paid; that defendant never waived this right; that it was the duty of the defendant to deliver, and the duty of the plaintiff to receive, this wool so sold at the time and place agreed upon, which was within two or three weeks from the date of sale; that it also was the duty of plaintiff to pay for the wool upon delivery; that the identical wool sold by defendant was tendered by him to plaintiff, and that 22,388 pounds of the wool was put in plaintiff’s sacks by plaintiff and persons employed by him; that plaintiff sacked this wool as the wool he bought; that he did not reject any of it; that one or two days after sacking this 22,388 pounds of fine wool he insisted upon his right to the possession of the wool, but refused to pay for it unless defendant would accept five cents a pound less than the contract price for 2,593 pounds of the' wool at that time sacked and weighed; that the defendant refused to give possession of the wool unless plaintiff would pay the contract price of 25y% cents a pound; that defendant, after waiting a reasonable time for the plaintiff to receive the wool and pay the contract price, rescinded the sale, and that he had a legal right under the circumstances, as shown by the undisputed evidence, to rescind it; that the defendant was not thereafter liable to plaintiff upon the contract of sale; that the title to the wool having passed to the plaintiff, the plaintiff’s, remedy, in case the wool was not of the quality warranted, was to receive and pay for the wool at the contract price, and sue defendant for damages for breach of warranty; that plaintiff did not have the right to refuse to pay defendant the contract price, and upon defendant’s refusal to deliver the wool until the contract price was paid, treat the contract as in force for the purpose of recovering damages for the breach of warranty and also treat the contract as rescinded for the purpose of recovering the advanced money paid.”

      On the other hand, the appellee says, in the brief:
    “According to defendant’s contention, the title of the wool at Vermontville passed from defendant to the plaintiff at the time the wool was sacked. If so, then the wool at Vermontville was the plaintiff’s wool. It continued to be plaintiff’s wool until it was converted by the defendant. The defendant and the plaintiff continued, their negotiations for a settlement of the differences which had arisen over the surplus fine wool. The defendant insisted that the plaintiff should take it and pay the contract price of 25% cents a pound for'this wool which defendant never sold, and which plaintiff never bought. The plaintiff refused to accept this sürplus fine wool, and to pay the 25% cents a pound. He offered to take the wool except this surplus fine wool and pay the contract price. He offered to take 300 pounds of fine wool and to take all other wool that complied with the contract. He offered to take the inferior fine wool not in accordance with the contract which the defendant insisted that he should take and to pay the market price for it. These negotiations for a settlement of this dispute run over a long period of time. They were discussed in Mr. Kidder’s office; they were discussed on the street; they were discussed in Dr. Vance’s office; but the defendant constantly sought to avoid a settlement. The price of wool was going up. The defendant desired to repudiate the contract and to take advantage of this increase in price, and finally on January 25, 1915, the defendant contends he rescinded by tendering to plaintiff his check which plaintiff refused to accept, and that he rescinded the contract thereby. So far as the surplus fine wool is concerned which was the real cause of the dispute above the 300 pounds of fine wool which the plaintiff agreed to accept in the 30,000 pounds of wool which he bought of the defendant, there was no acceptance of it. The mere fact that the wool was sacked by the defendant and at the defendant’s expense, the fact that the wool was left in the barn, and that the plaintiff agreed to pay storage charges thereon so long as the key to the barn was not delivered by defendant to the plaintiff, pending settlement, so long as plaintiff was excluded from the possession of the property, so long as the parties were negotiating for a settlement of the dispute which had arisen between them over this surplus fine wool not sold by defendant and not bought by the plaintiff, there was no such unequivocal acceptance by the plaintiff of the surplus fine wool as to pass the title of it from defendant to the plaintiff.”
   Ostrander, J.

(after stating the facts). Both parties testify to a present sale of wool, the precise quantity unknown. The jury has found that the quality was agreed upon, the whole to contain not more than 300 pounds of fine wool. Defendant tendered much more than 300 pounds of fine wool. The plaintiff refused to accept such a delivery, and offered to take the wool with 300 pounds of fine wool and pay for it. Defendant refused all offers made, insisting upon the agreed price for all of the wool and refusing to deliver less than all of the wool.

Under the provisions of the uniform sales act (3 Comp. Laws 1915, § 11832 et seq.), title to the wool passed to plaintiff November 28, 1914. It was the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract, delivery of the goods and payment of the price being concurrent conditions; the seller being ready and willing to give possession and the buyer ready and willing to pay the price in exchange for possession. But when the seller delivers to the buyer goods he contracted to. sell, mixed with goods of different description, not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or may reject the whole. There is a further provision of the act to the effect that where goods have been delivered to the buyer (though under a warranty), he cannot rescind the sale if he knew of the breach, of warranty when he accepted the goods.

I think it plain that plaintiff did all that he could do to perform his contract; that title to the goods bought passed to him; that delivery did not conform to the contract; that he offered to reject goods not bought and pay for the remainder; that defendant disputed the terms of the contract he had made and refused to make delivery in accordance therewith. Defendant cannot stand in this court upon any right to retain the goods until payment had been made in accordance with the contract. He refused to deliver; was not ready and willing to deliver what he had sold. He converted what he had sold by a sale to another. The issue of fact was properly given to the jury and, under the circumstances, the measure of damages recoverable was correctly stated. Negotiations by which plaintiff sought to receive what he had bought continued almost to the date when defendant disposed of the property. The measure of damages given by the trial court was the difference between 25y% cents and what the wool was worth when defendant sold it to others.

The judgment is affirmed.

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


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    EBERLE BREWING CO. v. BRISCOE MOTOR CO.
    1. Negligence — Contributory Negligence — Highways and Streets —Rules op the Road.
    Iel an action for the value of a horse, killed at a street intersection by collision with an automobile driven by defendant’s servant, where the evidence was open to the construction that the driver of the horse swung to the left to avoid the collision, when his proper course would have been to go straight on past the center of the street before turning, the question of contributory negligence was properly a question for the jury.
    2. Master and Servant — Automobiles—Scope op Employment— Liability op Employer.
    A tester, employed by an automobile factory to test and inspect engines and chassis in the course of manufacture for it by another company, was not acting within the scope of his employment so as to render his employer liable for the value of a horse killed by collision with a machine not yet delivered or accepted, driven by said employee after his hours of service were over, which he had borrowed to use over Sunday for his own pleasure; nor would the fact that he was voluntarily driving a salesman of his employer to the station at the time render the latter liable.
    Error to Jackson; Parkinson, J.
    Submitted October 17, 1916.
    (Docket No. 159.)
    Decided December 21, 1916.
    Case by the Eberle Brewing Company against the Briscoe Motor Company for the killing of plaintiffs horse. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Forrest C. Badgley, for appellant.

      Reece & Blackman, for appellee.
   Ostrander, J.

An automobile, going west on Wild-wood avenue in the city of Jackson, and a team of horses, going south on West avenue, were in collision near the northeast corner of the intersection of these streets, and one of the ho.rses was injured and because of his injuries was killed. This action is brought by the owner of the horse against the alleged employer of the man who drove the car, for the value of the horse. That the driver of the car was at the moment negligent was conceded, and it is assumed that the concession is rested upon the rate of speed, 15 miles an hour or more, that the car was driven to the street intersection.

Two questions were submitted to the jury as questions of fact, namely, whether plaintiffs servant in charge of the team was negligent, and whether the driver of the car was at the time in the service of the defendant. These questions were answered by the jury favorably to plaintiff, for which a verdict was returned and a judgment entered. Both of these questions, it is contended by defendant, should have been, answered, as matter of law, favorably to defendant.

Some of the material facts are not in dispute. Plaintiff’s driver wanted to turn east on Wildwood avenue (to turn to the left), and his team trotted down West avenue to the intersection and entered Wildwood avenue. The traffic regulation which required him to-turn east on the south side of Wildwood was knowm to the driver. The car was going west on the north side of Wildwood, near the curb. What happened was that the off horse — right-hand horse — of the team was injured, either because the driver was trying to turn the corner near the curb, or because, seeing the car1 approaching, the driver pulled his team and swung them to the left in an effort to avoid a collision. The car was swung out to the south, but not far enough to avoid striking or being struck by the horse, the right, shoulder of which was broken, and right hoof pulled from the leg. Other facts are in dispute.

Plaintiff’s driver testified:

“As I got out on Wildwood avenue about to make the turn, I saw this rig coming from the east,” 60 or 70 feet or more away. He says the rear .of the car struck the off horse in the breast. He was just about in the middle of the street (West avenue) when he started to turn. “The team was trotting out there, and I got to the corner first, and I thought I could get around. I had a right to turn the corner because I come out first the way I figured it. * * *
“Q. Where were you trying to go. You were trying to go on the north side?
“A. No; I thought I could turn the corner and go on east. I thought I could turn the corner and go on east before the car — ahead of this car, but I saw the car was so close I had to stop and figure any way possible to get out of the way of it. * * • *
“Q. You could see far enough so you could stop to avoid a collision with an automobile if you saw an automobile coming, couldn’t you?
“A. That depends. If you get to the corner first, ybu' have got a right to the corner, I should think. That’s the way I have figured it out.
“Q. Is that the way you figured that day, you got there first and had a right to it?
“A. I didn’t see anybody in sight when I got there so I went on to turn the corner. * * *
“Q. Then you saw this car when it was 60 or 70 feet away; why didn’t you, instead of turning your team and going directly toward the front end of the car, turn it the other way?
“A. I didn’t start turning them at that time.
“Q. You kept right on going?
“A. I got on the corner first, and I was going to take the corner first.
“Q. You got to the corner first, and you were going to take it first. So after you saw this car 60 or 70 feet away, you kept right on going toward the crossing?
“A. Yes.
“Q. You didn’t do a thing until you were right down there to the curb, did you?
“A. .Until I saw they weren’t going — wasn’t looking where they were going, and I saw I had to do something, and I didn’t have time to get across, and they were coming on.
“Q. You could see them during that entire 60 or 70 feet, you observed that?
“A. Sure I knew.
“Q. You knew he didn’t see you. That’s right, isn’t it?
“A. He didn’t see me until the other fellow nudged him.
“Q. You knew that all the time until he nudged him, until this man with Mr. Greenamyer nudged him, you knew- Mr. Greenamyer didn’t see you?
“A. I don’t think he did. He was looking around at the houses or something.
“Q. You didn’t think he did see you, and you kept right on going until you reached the crossing?
“A. Yes, sir. * * *
“Q. You thought you could get across, and you concluded to try to get across, didn’t you?
“A. Getting to the corner first, I thought I had a right to the corner.
“Q. You knew that Mr. Greenamyer didn’t see you and wasn’t looking at you?
“A. He wasn’t looking at me, sure.”

These excerpts from the driver’s testimony, and much more of his testimony, indicate that he did not intend to drive south, on the west side of the street, to and beyond the center of the intersecting street before turning east, but that he intended to turn to the east upon entering the street, he having got to the corner first. Such driving, both of teams and of automobiles, may be witnessed almost any day by an observing person, who will see drivers turning to the left at street intersections close to the curb. The result is that drivers approaching from the left, who have the right to turn the corner sharply to the right, if that is their route, are met by those turning wrongfully to the left. But the testimony of the plaintiff’s driver is open to the construction that, seeing danger, he did not turn the corner to the left nor seek to do so; that as he entered Wildwood avenue, seeing that the automobile driver had not discovered his approach, he pulled his horses — attempted to swing them to the left to avoid collision, acting as it seemed to him best to act under the quickly developed circumstances. The jury might well have found plaintiff’s driver guilty of negligence contributing to the injury. It was peculiarly a question for a jury, and their conclusion is not so clearly wrong that the court should disturb it.

The car which was in collision was a chassis — no body — -which had been made, or its parts assembled, by the Lewis Spring & Axle Company under contract to manufacture engines and chassis for the Briscoe Motor Company. It had not been delivered to the Briscoe Motor Company, and was a new machine, never before driven on the road. Its driver, Greenamyer, was an employee of the Briscoe Motor Company who spent his time, or most of it, at the plant of the Lewis Spring & Axle Company inspecting and exam-, ining the machines for his employer. He was there for convenience of both contracting parties, but represented and was paid by the Briscoe Motor Company. The accident occurred Saturday afternoon. Mr. Greenamyer took the machine to drive, intending to keep it out over Sunday. A man had called at the Lewis Spring & Axle Company plant who represented himself to be a salesman of the Briscoe Motor Company, and who desired to go to one of the plants of that company in another part of the city. Mr. Greenamyer volunteered to take him to the plant, and was on his way when the collision occurred. As matter of fact, he took him to the plant, waited a few minutes for him, took him to the railroad station, and then drove the car home and drove it on Sunday. The testimony is undisputed that Greenamyer had finished his work for the day when he left the Lewis Spring & Axle Company plant with the car. There is no testimony tending to prove that he was employed by the Briscoe Motor Company to drive this machine, at this time, or to carry a passenger for his employer, or for any one else. His trip was for the accommodation of the salesman who rode with him, or for his own pleasure, or both. It may be inferred that it was because he was an employee of the Briscoe Motor Company, and his passenger represented himself to be a salesman for that company, that Mr. Greenamyer volunteered to drive the salesman to the Briscoe Motor Company’s plant and from thence to the railroad station. But it does not appear that the salesman passenger was upon any business of the Briscoe Motor Company, and if inference is resorted to, it may be inferred that his visit was made in his own interest. Beyond this it is not made to appear that Mr. Gréenamyer was in any sense acting within the scope of his employment. The car did not belong to him, nor to his employer. It was borrowed from the Lewis Spring & Axle Company, as other cars had been at other times borrowed. Mr. Greenamyer had the permission of the owner to use the car. It is quite probable that his employment secured him permission to use the car. The rule which plaintiff invokes is the rule which makes an employer responsible for the conduct of his servant, a part of which is that the servant must be acting within the scope of his employment. In recent cases the doctrine and its application were considered, and it was said:

“The phrase ‘in the course or scope of his employment or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.” Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Brinkman v. Zuckerman, 192 Mich. 624 (159 N. W. 316).

It would be an invasion of the rule, and a false application of it, if it was held that a servant may, at any time, volunteer to borrow a car and carry a passenger, or for his own use drive it, at his master’s risk.

The court should have directed a verdict for defendant: The judgment is reversed, with costs to appellant, and a new trial is not ordered.

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


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    AMERICAN BOAT CO. v. ST. CLAIR CIRCUIT JUDGE.
    1. Mandamus — Justices of the Peace — Appeal to Circuit Court —Judgment.
    Mandamus Is the proper remedy to review the action of ■ the circuit court in dismissing an appeal from the Justice’s court, where appellant desires to retry the issue determined in Justice’s court, since the order of the circuit court is not the end of the matter, hut the Judgment of the Justice’s court stands and may be enforced by process.
    2. Justices of the Peace — Appeals—Port Huron Charter — Construction.
    A provision of the charter of the city of Port Huron providing that no appeal shall be taken from the Justice’s court except when said Justice shall disallow any claim in favor of any plaintiff or defendant in any cause to the amount of $50, or when said Justice shall render a Judgment to the amount of $50, exclusive of costs, applies to all cases, whether tried by the Justice or by a Jury.
    3. Same — Appeals—Jurisdiction—Record—Dismissal.
    The Jurisdiction of the circuit court to determine the appeal depends upon whether the record disclosed either a Judgment for $50 or the allowance or disallowance of a claim, asserted by either party, to the amount of $50, in the latter case the aggrieved party alone having the right to appeal; so, where plaintiff sued for $29.01 and judgment was entered in favor of defendant on his counterclaim of $176.25 for $37.50, the record failed to show a state of facts entitling plaintiff under the statute to appeal, and his appeal was properly dismissed.
    Mandamus by the American Boat Company against .Harvey Tappan, circuit judge of St. Clair county, to compel respondent to vacate an order dismissing ah appeal from justice’s court.
    Submitted November 24, 1916.
    (Calendar No. 27,451.)
    Writ denied December 21, 1916.

      James A. Muir, for relator.

      Chester L. Benedict, for respondent.
    The petition for the writ sets out that in an action of assumpsit in justice’s court, in the city of Port Pluron, the plaintiff limited his recovery, by a bill of particulars of his demand, to the sum of $29.01, and the defendant under the general issue gave notice of set-off and filed a bill of particulars of his demand in the sum of $176.25; that the issue joined was tried by a jury, which returned a verdict for defendant in the sum of $37.50, upon which judgment was duly entered; that plaintiff claimed and duly perfected an appeal to the circuit court for St. Clair county, in which court, upon motion of the defendant, the said appeal was dismissed for the reason that the charter of the city of Port Huron provides that no such appeal shall be taken, except:

      “First. When said justice shall disallow any claim in favor of any plaintiff or defendant in any cause in the said justice’s court in whole or in part, to the amount of fifty dollars.

      “Second. When said justice shall render a judgment to the amount of fifty dollars exclusive of costs; in either of which cases the party aggrieved may appeal.”

      The return to the order to show cause admits, in substance and effect, the facts set up in the petition, but appended to the answer, and referred to therein, is the affidavit and bond on appeal and the return of the justice on appeal. Neither the affidavit on appeal nor the return of the justice furnishes all the facts so set out and admitted. The return does not show that defendant did more than plead the general issue, nor does it show that either party filed a bill of particulars, nor what the precise claim of either party was. It does show that a judgment for defendant for $37.50 was entered, but is silent upon the subject of a verdict. In the affidavit for appeal it is stated that a final judgment was rendered, disallowing plaintiff’s claim of $26.68, and giving defendant judgment for $37.50 and costs. The order of the circuit court does not appear in the record.
    It is the contention of respondent: First, that mandamus is not the proper remedy; second, that, in any event, the action of the trial court was right. Relator contends that the charter provision does not refer to cases tried by a jury, but only to those determined by the justice; that the statute is uncertain, ambiguous, and meaningless, and should not be held to be sufficient to repeal the general law governing appeals from justice’s judgments; and that, in any event, the justice (or the jury) disallowed a claim in favor of plaintiff to the amount of $50, since plaintiff (relator) suffered more than $50 of damage by the judgment — losing $29.01 of his demand, and being subjected to $37.50 of defendant’s disputed demand.
   Ostrander, J.

(after stating the facts). Mam damus is the proper remedy, because it is really the only adequate remedy. Appellant desires to retry the issue determined in justice’s court. If the order denying the right is reviewed by writ of error, and reversed, the cause must then be remanded for trial, with the right to review the final judgment by writ of error. By analogy, the case is most like one in which a delayed appeal is claimed, and is refused by the circuit court. In both cases the circuit court declines to take jurisdiction. In neither case does the order of the circuit court end the matter, because the judgment stands as the judgment of the justice’s court, to be enforced by its process. The case is manifestly unlike some of those cited and relied upon in the brief for respondent, in which the action of the circuit court sought to be reviewed is based upon something occurring in that court, as where an appeal is dismissed for want of prosecution. Fowler v. Pixley, 25 Mich. 513, Willis v. Gimbert, 27 Mich. 91, and Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495 (87 N. W. 641), are such cases. And, unlike Stall v. Diamond, 37 Mich. 429, affidavits are required here to show that error was committed, if there was error. The return of the justice does not contain all of the facts relied upon.

The provision of the charter above referred to is interpreted as applying to all cases, whether tried by the justice or by a jury.

The meaning of the proviso limiting appeals is not, perhaps, entirely plain. The justices have jurisdiction, in assumpsit, to render judgment for any amount not exceeding $500. If a judgment for $50, or more, is rendered, either party, feeling aggrieved, may appeal. But the existence of judgment, for one party or the other, for $50 or more, does not, in all cases, determine the right to appeal. If so much of the claim of either is disallowed, the aggrieved party may appeal. It is clear that a judgment for $50 might be rendered in a case in which the plaintiff, asserting a claim for $10, is met by a counterclaim for $60. Suppose a plaintiff asserts a claim for $40, and is met by a counterclaim of $30, and a general verdict for defendant of $10 is returned, and a judgment for that sum entered for defendant. In such a case there is neither a judgment for $50, nor has the claim of either party been disallowed to the amount of $50, nor can it be ascertained how much of either original demand is allowed. It may be that all of plaintiff’s demand and all of the counterclaim, excepting $10, were disallowed. It may be that all of the counterclaim and $20 of plaintiff’s claim were allowed. In either event, the plaintiff is apparently unfavorably affected to the amount of $60 by the judgment. The uncertainty concerning how much of each of counterclaims has been allowed, when it exists, furnishes support for the argument that the appellate court, in determining whether an appeal has been properly taken, must in all cases consult and be bound by the record. The jurisdiction' of the circuit court to determine the appeal depends upon whether the record discloses either a judgment for $50 or the allowance or disallowance of a claim, asserted by either party, to the amount of $50; the aggrieved party, in the second case, having alone the right to appeal. This is what the statute says, and, in my opinion, this must be the meaning given to it. In-determining whether a claim of either party has been disallowed, the asserted claim of each must be contrasted with the judgment which was entered, unless it appears that for some reason (and usually it would be because of some ruling of the justice) the claim, or counterclaim, as the case may be, or some of it, was ordered withdrawn and excluded from consideration by the court or jury.

Aside from the particular language employed in the statute, this conclusion is sustained by the consideration that if the amount in controversy, or the amount involved, or. the respective claims of the parties, was the intended test, appropriate language to that effect would have been employed, although, where statutes have been so framed, differences of opinion exist concerning the right to consider, in determining the right to appeal, opposing claims of the parties. See the text and notes, 2 Cyc. p. 566 et seq.

I conclude that the court rightly dismissed the appeal, and that the writ should be denied, with costs.

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


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    WAYNE COUNTY & HOME SAVINGS BANK v. SMITH.
    1. Banks and Banking — Deposits—Husband and Wipe — Ownership op Account.
    Where a wife deposited money in a savings bank in her own name, and during her lifetime authorized her husband to draw on the account, who, after her death, claimed the money as his, and the bank conditionally placed it in his name, nothing can be predicated by the personal representatives of the deceased husband or wife, in proceedings to determine the ownership, upon what was said or done with respect to the fund after the death of the wife; no new contract was made, and the rights of the parties must be determined as of the date of the wife’s death.
    2. Same — Evidence—Deposits—Joint Fund.
    Evidence examined, and held, that it is not proven that the fund was a joint fund, or that it belonged to the husband.
    3. Same — Burden op Proof.
    Where it appeared that the wife was the creditor of the bank when she died, the burden was upon the husband’s representative to prove that the fund was his, or was a joint fund, title to which passed to him at his wife’s death.

      Appeal from Wayne; Sharpe, J., presiding.
    Submitted October 5, 1916.
    (Docket No. 46.)

    Decided December 21, 1916.
    Bill of interpleader by the Wayne County & Home Savings Bank against Kenzie G. Smith, administrator of the estate of Samida M. Lake, deceased, and Georgiana W. Coyle, executrix of the estate of Eliza Lake, deceased, to determine the title to a certain fund on deposit in plaintiff bank. From a decree for defendant Coyle, defendant Smith appeals.
    Affirmed.

      Dickinson & Dickinson (Thomas T. Leete, Jr., of counsel), for defendant Smith.

      John C. Hewitt, for defendant Coyle.
    An account was opened in the savings department of the Wayné County & Home Savings Bank by the deposit of $100 in the name of Eliza Lake. Thereafter sums aggregating $2,450 were deposited, and $400 was withdrawn, and, with interest, the bank owed $4,549.89 to the owner of the fund when the bill in this cause was filed, in July, 1914. When it was filed, Eliza Lake was dead, and her husband, Samida M. Lake, was dead, and their personal representatives were each of them claiming the fund. Eliza Wallace, a widow, and Samida M. Lake were married in the year 1871, she at the time and during the remainder of her life receiving the rents of a parcel of real estate in the city of Detroit. She died April 3, 1912. Mr. Lake was employed in the auditing department of the Michigan Central Railroad Company, and was paid at a rate beginning at $45 and increased later to $50 and finally $55 a month. He bought and sold some real estate in the village of Trenton, Wayne county, Mich., during the married life of the parties. His salary, such profits, if any, as he received from the sales of real estate, and the rent of the property owned by Mrs. Lake, are the sources of income shown by the record. When the account with complainant was opened, no name but that of Eliza Lake was entered upon the ledger, according to which she was credited with deposits and interest and charged with withdrawals, but there was entered in the signature book of the bank the following:
    No. Acc’t Opened. Name. Place of Birth.. Age. 49866 Dec. 14, 1888 Eliza Lake Eng. 47 Occupation. Residence. Remarks. Married Trenton, Mich. S. M. Lake
    Such checks, or orders, upon the fund as could be produced at the hearing were signed “S. M. Lake,” none “Eliza Lake.” Two checks appear to have been drawn and paid after Eliza Lake died. S. M. Lake, after the death of his wife, claimed the fund, and sought to have the account transferred to him. This was, in form, done, but conditionally, Mr. Lake being informed that he could not draw the money until the contention and claim of the executrix of his wife’s estate, brought to the attention of the bank’s officials, was determined. This transfer was made in October, 1913, and the attorney of the bank advised Mr. Lake that, in his opinion, based upon what appeared upon the books of the bank, the account was not a joint, or joint and several, account, and that his power to draw the money ceased when Mrs. Lake died. In reliance upon Mr. Lake’s statements, at about the date of the transfer, he was permitted to draw $100 upon one of the two orders above referred to. Then Mr. Lake died. The defendants having interpleaded and been heard, the court found:
    “(1) That the account in the bank was started by Eliza Lake, and, so far as the bank was concerned, the moneys were her moneys, though subject to being drawn out by her husband at any time prior to her death.
    “(2) That the only reason why the name of S. M. Lake appeared in the ledger account or in the signature book of the bank was, to indicate authority on his part to draw out moneys.
    “(3) That the action of the bank in transferring ■ the moneys to the S. M. Lake account was unwarranted, and in no way affects the right of the executrix of the 'Eliza Lake estate to the fund”
    —and entered a decree, awarding the fund to the executrix of Eliza Lake’s estate. The representative of Samida M. Lake contends that the fund belonged to him because it was accumulated from his money, was deposited as a joint fund, was considered joint money, and some of it paid as such after the death of Mrs. Lake, it was claimed by Mr. Lake as his money after the death of his wife, and the statute determines it to be the property of the survivor.
   Ostrander, J.

(after stating the facts). .Nothing can be predicated by either party upon what was said or was done with respect to the account after the death of Mrs. Lake. This ruling is not rested upon the alleged incompetency of any witness to testify, but upon the ground that no new contract was made by the bank after her death, and no particular existing contract was recognized by merely making the conditional change in the account upon the books of the bank. The rights of the parties must be determined as of the date of Mrs. Lake’s demise, in view of any evidence which tends to prove the contract between the bank and the depositor and the actual relations existing between Mr. and Mrs. Lake. The bank is indifferent, offering to pay the money to the rightful owner. Even if the statute (section 3, Act No. 248, Pub. Acts 1909 [2 Comp. Laws 1915, § 8040]) relied upon by appellant would protect the bank in making payments out of the fund to Mr. Lake, or his representative, after the death of Mrs. Lake, it has no application here. The bank has not paid the money, and admits notice not to pay the money to Mr. Lake. The statute, however, in terms, relates to cases where a deposit is made by any person in the name of such depositor, or any other person, in form to be paid to either or the survivor of them, and provides that such deposits and any additions thereto, made by either of such persons, upon the making thereof shall become the property of such persons as joint tenants, be held for their use, be paid to either or to the survivor, and, after being so paid, the receipt or acquittance -of the one to whom the money is paid shall discharge the bank for all payments made prior to the receipt by the bank of notice in writing not to pay such deposit in accordance with the terms thereof. It was said by this court in Davis v. Savings Bank, 53 Mich. 163, 166 (18 N. W. 629), that:

“As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, where a contract is not in writing, it is equally clear that its real character and terms may be made out by testimony, and that the contracting party can lawfully control his own funds until he has disposed of them, and that it can make no difference in what name the account is kept, if it is understood to be his account, and has not been put beyond his control by some act which he cannot revoke.”

The question to be decided is a question of fact, and '.is to whom the money belonged, to Mr. or Mrs. Lake, 1 or to both of them. The competent evidence is meager. The bank books tend to prove that the money belonged to Mrs. Lake; that the contract with the bank was made by her; that she was the creditor; and that upon her authority her husband was authorized to draw the money. They do not tend to prove a joint account or a deposit of money owned by them jointly. They do not tend to prove a contract to pay the money to the survivor of them. It is not apparent, from the books,, that the bank had any dealings whatever with Mr, Lake, except to record his signature, and other testimony tends to prove only that money was paid to> him out of this fund, upon his order. No custom of the bank is shown to treat a deposit so made as a joint deposit, or the money deposited as owned by any one-other than the depositor. The testimony concerning' the sources from which the money was derived leads, to no definite conclusion concerning its ownership. Ia one particular year much more money was deposited, than could have been derived from the rentals of the real estate received by Mrs. Lake. That was in the-year 1894. In that year Mr. and Mrs. Lake sold and. conveyed property in Trenton for a total consideratioa of some $1,200, one parcel so conveyed belonging to-them as tenants by entireties and being their homestead. There is testimony to the effect that Mrs. Lake deposited her rent money with the complainant bank, that the rented real estate was the property of her deceased husband, and that her executrix, Mrs. Coyle, as heir of her father, was in law the owner of the property. There is no testimony which tends to prove that Mr. Lake received more than $55 monthly salary, after working for $50, and earlier for $45, a month. It appears to have been conceded at the hearing that there was a bank account with a Trenton, and another with a Detroit, bank other than complainant. To neither of these funds does the executrix of Mrs. Lake make a claim. Assuming, as we must, that both Mr, and Mrs. Lake assented to the manner in which the account with complainant bank was opened, in the absence of any testimony tending to prove that Mr. Lake ever himself made a contract with complainant, or ever deposited any money with it, I think it is not proven that the fund was a joint fund, or that it belonged to him. He himself wrote upon the inside front cover of the passbook, “Mrs. Eliza Lake, Trenton, Michigan.”

The case stands, then, in this way: It appears that Mrs. Lake was the creditor of the complainant bank, having the right, when she died, to dispose of this fund. It is presumed that Mr. Lake had knowledge of this condition of affairs. The burden is upon his representative to prove that in fact the fund was his, or was a joint fund, title to which passed to him upon the death of Mrs. Lake. In my opinion, he has not sustained this contention, and, therefore the decree must be, and is, affirmed, with costs to appellee.

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


author: Ostrander, J.‘

text:
    HUNTER v. BLOSSER.
    Brokers — Commissions—Directed Verdict.
    Where plaintiff sued for broker’s commissions for tbe sale of defendant’s business, which consisted of a barber shop and a laundry agency, which sale was not consummated because the buyer, a laundry company, refused to assume defendant’s agency contract with another laundry, plaintiff did not procure a purchaser able, ready and willing to buy, and a verdict should have been directed for defendant.
    Error to Wayne; Collingwood, J., presiding.
    Submitted October 18, 1916.
    (Docket No. 7.)
    Decided December 21, 1916.
    Assumpsit in justice’s court by Charles C. Hunter against Dura A. Blosser for broker’s commissions. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed; no new trial granted.

      Rowland, M. Connor, for appellant.

      Chas. E. Duffy, for appellee.
    The written evidence in the case is here set out:
    “Sept. 24, 1914.
    “To C. C. Hunter,
    “482 McClellan Ave,
    “For and in consideration of one dollar ($1.00), the receipt of which is acknowledged, I hereby appoint you exclusive agent to make sale of the property described as stock, fixtures, and lease of business located No. 330 Woodward Ave., for the price of $5,500.00, upon the following terms: $100 cash: $5,400.00 in deferred payments as follows: Nineteen hundred ($1,900) dollars on delivery of the above-described property and lease, and the balance to be paid in monthly installments of one hundred fifty ($150) dollars or more. And you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for the sale on my behalf.
    “In case the above-described property is sold or disposed of within the time specified, I agree to make the purchaser a proper conveyance to the same; and it is further agreed that you shall have and may retain from the first proceeds, arising from such sale $500.00 commission on the above price; and in case said property is sold within said time either through me or any other person, then and in that case I promise to pay you $500 on the whole amount for which said property may be sold.
    [Signed] “D. A. Blosser.
    “Witness:
    “Henry J. Prinz.”

      “Agreement made this 24th day of September, A. D. 1914, between D. A- Blosser hereinafter described as the seller, and C. C. Hunter, hereinafter described as the purchaser, witnesseth that the seller agrees to sell and the purchaser agrees to purchase the business known as the Bartlette Laundry and Barber Shop, located at 830 Woodward Ave., with all the stock and fixtures therein, according to inventory attached hereto and made part, of this agreement. This transfer to include the business of branch laundry office located at-Woodward Ave., known as the ‘Addison Smoke Shop,’ or any other branch office or business in which said D. A, Blosser is in any way connected. Purchaser to receive all commissions on uncalled for laundry on date of transfer. The price is fifty-five hundred ($5,-500.00) dollars on the following terms, viz.: One hundred ($100.00) dollars on signing this agreement, the receipt of which is hereby acknowledged, nineteen hundred ($1,900.00) dollars on delivery of the above-described property and lease, and the balance to be paid in monthly installments of one hundred fifty ($150.00) dollars or more. Seller hereby agrees to grant and convey to purchaser a clear bill of sale to the above described property and lease all shortage claims, if any, to be paid for by said D„ A. Blosser. Said purchase to be closed on or before Monday, September 28th, 1914.
    “The seller further agrees that he shall not enter in any manner, shape, or form, or connect himself with any laundry agency, soliciting of laundry, or barber business, in the city of Detroit, or Highland Park, Wayne county, Michigan, from date hereof for a period of five (5) years, without the written consent from the aforesaid purchaser under forfeiture of the sum of five thousand ($5,000.00) dollars, payable on demand.
    “Witness our hands and seals this 24th day of September, A. D. 1914.
    “D. A. Blosser.
    “C. C. Hunter.
    “Henry J. Prinz.”
    “I hereby assign all my right and title in above to Palace Model Laundry Co., of Detroit.
    “Detroit, Mich., Sept. 25/14.
    “C. C. Hunter.”

      “Detroit, Sept. 28/14.
    “We hereby agree to extend the date for delivery and settlement of the agreement on the other side until 29th Sept., 1914, instead of Sept. 28, 1914.
    “D. A. Blosser.
    “Palace Model Ldy. Co.
    “D. K. McNAUGHTON, Pres.”
    “5 chairs barber
    2 Davenport shoe shine stands
    6 high-back chairs
    4 wall case' mirrors
    1 mirror 30x72
    2 “ 18x40
    1 “ 24x50
    Barber’s basin
    1 ceiling fan
    1 small fan
    3 umbrella stands
    Heater & boiler
    Clock
    10 small lights
    4 triple “
    2 cash registers
    2 massage machines
    10-ft. showcase
    Outside lamp
    Outside sign
    Awning
    Tobacco & cigar to amount of
    1 showcase in cellar
    And all other stock and fixtures on hand.”
    “This agreement made and entered into this 19th day of September, A. D. 1914, by and between the Dispatch Laundry Company, a Michigan corporation, of the city of Detroit, Michigan, party of the first part, and Dura A. Blosser, of the same place party of the second part, witnesseth: The said first party is now engaged in the laundry business at 107-115 Larned St. West, Detroit, Michigan, and said second party is engaged in the laundry agency business in the city of Detroit, at No. 330 Woodward Ave., operating at that address what is known as Bartlette’s Laundry, and has also established a branch of his said business in the Addison Assembly Hall, Detroit, Michigan.

      “Now, therefore, it is mutually agreed as follows:
    “(1) The second party agrees that for the term of one year from and after September 19, 1914, he will give to the first party all the laundry work that is done through his said branches at 330 Woodward Ave. and Addison Assembly Hall, Detroit; that he will not employ any other laundry to do any of said work and will not represent any other laundry or allow any other laundry to be represented in his said branches.
    “(2) Said second party agrees to send the laundry work aforesaid to the plant of said first party, and to pay all bills for work promptly, at least once each week, and to account to first party and pay over any and all amounts due to said first party at least once a week.
    “(3) The first party agrees to maintain the present quality of its service and the quality of its laundry work, but it is expressly agreed that the second party shall not have the right to declare this contract annulled or abrogated on account of the quality of the work or service of the first party; nor shall it be deemed a breach sufficient to avoid the contract if the work or quality or service is not satisfactory to the second party.
    “ (4) In consideration of the premises the first party agrees to pay said second party a commission of 37% per cent, on the amount of business turned over by the second party to the first party, and guarantees this rate of commission for the term of this contract.
    “(5) This agreement is expressly made binding on the successors and assigns of the parties hereto.
    “In witness whereof the parties have hereunto set their hands and seals this day and year first above written.
    “Dispatch Laundry Co. [L. S.]
    “J. Hendrick, Mgr.
    “D. A. Blosser. [L. S.]
    “In presence of Ralph S. Potter.”
    Explanatory thereof, and undisputed, is testimony tending to prove that, as plaintiff knew, defendant had in fact no laundry, but had a laundry agency. He solicited, collected, put out to be laundered, and delivered garments. He was himself the patron of a laundry, or of laundries, receiving a commission upon the business he furnished. The Palace Model Laundry Company desired to acquire defendant’s business, and employed plaintiff to secure it, the company not to appear in the transaction unless it was successfully closed. He was told that, if he could buy it and sell it to the Palace Model Laundry Company, it would buy it through him. He was the medium by which the company hoped to acquire defendant’s business, and plaintiff was given a maximum price of $5,500; he to get his commission from the seller. After assigning his agreement to purchase, plaintiff introduced to defendant his principal, the Palace Model Laundry Company, and investigation disclosed the existence of the agreement between defendant and the Dispatch Laundry Company, an agreement which defendant evidently regarded as an advantageous one. A release from this was sought by defendant, at the request of the Palace Model Laundry Company, and was not secured. Thereupon and therefore the Palace Model Laundry Company declined to proceed in the transaction. No one proceeded, although defendant was willing to do so, and plaintiff sued defendant for his commission of $500, and upon the trial had a verdict and judgment for this sum. Both parties asked for a directed verdict, and each now claims that a verdict should have been directed in his favor. Neither agrees with the theory of the charge. The court left to the jury the question whether the commission agreement was made before the agreement to sell to plaintiff, advising the jury that if the commission agreement was in fact first made, and the Palace Model Laundry Company was able, ready, and willing—
    “to buy that property, and did not buy it because of the act that Mr. Blosser had performed in selling his business to some one else so he could not sell it, then Mr. Hunter is entitled to his commission just as if he had sold it. * * *”
   Ostrander, J.‘

(after stating the facts). Defendant had title to whatever he offered to sell. No question, is raised respecting his title to the specific articles described in the inventory, and none to his title to and. ownership of his business. Plaintiff says he first made his contract of agency, then his agreement to purchase. There is no testimony tending to prove that plaintiff .produced a purchaser who would buy in accordance with the agency contract.

Plaintiff himself, the agency contract being in existence, agreed to buy, not only what the agency contract described, but more, and also the promise of the defendant vendor not to engage for five years in the immediate vicinity in a competitive business. In this contract the agent is a principal, and as such he paid $100 of the purchase price. He has not offered to perform his agreement, nor any proof that he is able and willing to do so. He sought to secure the business and property for another, who refused to take it, although it had succeeded, as assignee, to his rights.

Let it be assumed that it was understood between plaintiff and defendant that the agreement to sell and. buy which was executed was a means merely to secure a sale to plaintiff’s, undisclosed principal, the Palace^ Model Laundry Company. In this view it is. not material whether the agency agreement or the sales agreement was first made or whether they were each a part of a single transaction. The agency agreement itself bears convincing evidence that it was last prepared, because in two places therein it refers to a time limit not therein specified for making a sale. The sales agreement alone specifies the limitation.

Let it also be assumed that such a sale as defendant desired to make, and, if made, such as he was willing; to pay the stipulated commission for having made, was not made because his contract with the Dispatch Laundry Company was outstanding. Has the plaintiff earned the commission? The answer must be “No.” No act of defendant prevented the sale of his business. He had not, as the court in the charge assumed, already sold it to another. • There was no lien or incumbrance upon the business or upon the specific property agreed to be sold. It does not appear that the contract with the Dispatch Laundry Company was not a most advantageous one for the business. The purchaser proposed by the plaintiff did not wish to buy the business as it was. It is said for appellee that no laundry company would want to buy the business with this contract outstanding. But plaintiff was not limited to a sale to a laundry company. It might be argued as well that no laundry company would wish to buy a barber shop and fixtures and no barber would care to buy a laundry agency, and that, if any but a laundry concern did buy it, the contract for laundry work would be regarded as a valuable asset of the business. Defendant had a barber shop, furniture therefor, a laundry agency, and, in a way, a laundry business. That was his business. For it plaintiff has not procured a purchaser, unless he himself is to be regarded as such. A verdict should have been directed for defendant.

The judgment must be reversed, and there seems to be no reason for ordering a new trial.

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


text:
    CONLON v. IRVINE.
    1. Trusts — Conveyances—Passive Trust.
    Where the agent of the beneficiary in a trust deed notified the trustee that he had an interest in the premises, complainants were not entitled to a conveyance by paying the mortgage, securing a quitclaim deed from the beneficiary, and tendering the balance of the agreed purchase price, under the rule that the trustee of a passive trust may, on the discharge of any obligation owing by the cestui que trust, be compelled to convey the title, where the agent’s claim was unsatisfied and his consent to the transfer withheld.
    2. Specific Performance — Parol Agreement to Convey — Equity.
    Where the .legal and equitable rights of the real parties in interest would be disregarded, the court of equity will not enforce the specific performance of- a parol agreement of the- trustee to convey on the tender of the agreed purchase price.
    Appeal from Wayne; Gilday, J., presiding.
    Submitted October 24, 1916.
    (Docket No. 33.)
    Decided Dcember 21, 1916.
    Bill by Thomas A. Conlon and another against William H. Irvine and the Union Trust Company for an injunction restraining defendants from incumbering or disposing of certain real estate, and for other relief. From a decree for defendants, complainants appeal.
    Affirmed.

      Neal M. Hebinger, for complainants.

      Frank D. Andrus, for defendant Irvine.

      Campbell, Bulkley & Ledyard (Douglas Campbell, of counsel), for defendant trust company.
   Ostrander, J.

The case made by the bill of complaint is rather a simple one, to the following effect: Freeman B. Dickerson and his wife, owners of certain real estate described as lot 15, block 98, of the subdivision of blocks 97 and 98, Cass Farm, known as 143 West Canfield avenue, in Detroit, Mich., conveyed the property to the Union Trust Company by a deed dated May 2, 1901, subject to a mortgage of $5,000 running to the Massachusetts Mutual Life Insurance Company, in trust, however, for Mary L. Wagner, her heirs and assigns, and containing the covenant, “which mortgage the said Mary L. Wagner assumes and agrees to pay." Plaintiffs wished to acquire the property, inquired of the Union Trust Company as to its interest in it, agreed with an officer or officers of said trust company that $7,500 was a fair price for the property, received a parol promise that the said Union Trust Company would convey the property for $7,500, procured a quitclaim deed from Mary L. Wagner, the cestui que trust, paid and took an assignment of the mortgage, which had been reduced to about $3,000, tendered the Union Trust Company the sum of $4,500, and demanded a deed, which was refused. In the course of negotiations with the Union Trust Company, plaintiffs were informed that William H. Irvine, agent for Mary L. Wagner, should be seen because he claimed an interest in the premises. Irvine stated that the owner was indebted to him, and plaintiffs offered him $7,500 cash for the property, he, the said Irvine, to pay the above-mentioned mortgage and the claim of the Union Trust Company against the premises. Plaintiffs seek an application of the familiar principle that the trustee of a simple or passive trust may, upon the discharge of any obligation owing by the cestui que trust, be compelled to convey the legal title to the equitable owner. They seem to rely also upon a right to a specific performance of the alleged parol agreement to convey land, and pray, among other things, that the Union Trust Company be decreed to specifically perform “their part of the said agreement,” plaintiffs being ready and offering to perform on their part, that upon the payment to said Union Trust Company and the said Irvine, or either of them, or the register of the court for them, the said defendants, the Union Trust Company and the said Irvine, be decreed to convey to plaintiffs, by a good and sufficient deed of conveyance, the said property in fee simple, and that upon said payment plaintiffs be decreed to be the owners of the land or premises in fee simple, and the defendants decreed to be divested of all right, title, and interest in the said premises.

When the answer of the defendant Union Trust Company is read, and the testimony taken at the hearing considered, the case is found to be not at all the case made by the bill. It is true that plaintiffs have a quitclaim deed from Mary L. Wagner, procured through the friendly offices of a mutual friend of plaintiffs and the said Mary L. Wagner. It is also true that this quitclaim deed, executed in the State of California, did not contain the names of the grantees, they being unknown to her, and that the said Mary L. Wagner did not suppose or believe that, at the time of executing the deed, for which if it was used she was to receive the nominal consideration of $25, she had any real interest in the property. Beyond this, a preponderance of the evidence requires the finding, which is in agreement with the finding made by the trial court, that the Union Trust Company did not promise to convey to plaintiffs the property, did refer the plaintiffs to Mr. Irvine, who told them the property was not for sale, and did disclose to plaintiffs facts in relation to the property which, with other facts developed at the hearing, may be briefly stated as follows: Upon the death of her husband, Mary L. Wagner found herself possessed of considerable property in the city of Detroit, and confronted with a considerable indebtedness. She owned a home on the corner of Woodward and Canfield avenues, and considerable property on Leicester court. She applied to the Union Trust Company for a loan of $17,000, which it made to her, and as security executed a mortgage upon her property on Woodward avenue and Leicester court, some of which was afterwards sold or traded to Freeman B. Dickerson, the Union Trust Company releasing it from its mortgage. In the transaction, Dickerson conveyed directly to the Union Trust Company the property in question here, and paid certain money which the Union Trust Company received, and the said Mary L. Wagner and the said Union Trust Company made a written agreement, dated the 3d of May, 1901, which recites that the trust company holds a mortgage of the said Mary L. Wagner for $17,000, dated January 30, 1896, payment of which had been extended by agreement, recites that the Union Trust Company has released from the operation of the mortgage a portion of the real estate described therein, and, in consideration therefor, taken $8,000 in cash and a deed of certain other property made by said Dickerson and his wife to the Union Trust Company as trustee for the party of the first part, that upon the property so deeded there is a mortgage for $5,000 which Mary L. Wagner has assumed, and that until the full payment of the $17,000 mortgage the trust company shall retain possession of the property deeded to it as trustee, and, unless sooner sold, collect all the rents therefrom and use it to protect the said property, “said property to be sold as soon as practicable, and the proceeds applied, after payment of the said $5,000 mortgage, on said $17,000 mortgage.” This agreement is signed by Mary L. Wagner, by W. H. Irvine, attorney in fact, and the Union Trust Company. Mr. Irvine seems to have interested himself in Mrs. Wagner’s affairs for the purpose of saving for her something out of her property. He was appointed by her her attorney in fact by a writing dated January 4, 1900, with power to sell and convey all her right, title, and interest in and to certain described property, “and all other lands and real estate belonging to and owned by her and situated in Wayne county,” to collect rents, and, in the name of his principal; to execute proper deeds of the property, the power of attorney being recorded April 12, 1901. For some reason, immaterial here, Mrs. Wagner executed a deed of all her Leicester court lots remaining unsold to Irvine, the trust company discharged its mortgage, and accepted in its place a new mortgage, made by Irvine, covering the Wagner lots, and also property belonging to Irvine, this mortgage being for something more than $20,000. The Union Trust Company advanced money with which to build houses upon some of the lots, and when the trade was made with Mr. Dickerson, a written agreement was made by Mary L. Wagner, by Mr. Irvine, her attorney, by Mr. Irvine personally, and the Union Trust Company, dated July 9, 1907, which recited the agreement of the parties of the 3d of May, 1901, the fact that the Union Trust Company had upon the day of the date of the agreement taken from the said Irvine a new mortgage in place of the $17,000 mortgage mentioned in the former agreement, and the agreement that the property conveyed to the Union Trust Company by Dickerson and his wife should be held by the Union Trust Company as additional security for the payment of the mortgage given by Irvine to the Union Trust Company, the other terms and conditions of the agreement remaining unchanged. Some question is made by plaintiffs as to the legal effect of the signature of the said Mary L. Wagner to this last agreement by her attorney in fact, based upon the fact that the Dickerson property was not a part of the property of the said Mary L. Wagner at the time the power of attorney was executed.

Mr. Irvine had himself made advances for Mrs. Wagner, and had an interest in all of the property in which she herself was beneficially interested, he claiming, and his testimony is undisputed, that while the mortgage he gave to the Union Trust Company has been reduced by payments to about $2,400, his claim against Mrs. Wagner amounts to about $9,000, as security for which he claims, not only the property originally belonging to her, but the property in question as well. The only thing that can be regarded as evidence that the parties in interest — that is to say, Mrs. Wagner, the Union Trust Company, and Mr. Irvine — are not in complete accord is the fact that Mrs. Wagner executed a quitclaim deed of this property to persons unknown to her. The history of this deed, further than it has been related, is that a Mr. Walter Mathews was applied to by Mr. Conlon to procure it, who corresponded with Mrs. Wagner, that the deed was executed and after execution was sent by her to Mr. Irvine. He received it, and, as he testified, without looking it over, knowing nothing of any transaction going on between Mr. Conlon and the Union Trust Company, having himself stated to Conlon that the property was not for sale, he supposed it was some old transaction of Mr. Wagner during his lifetime which called for a quitclaim deed, and sent the deed to Mr. Mathews, who delivered it to Mr. Conlon. There is abundant testimony supporting the conclusion that he would not understanding^ have delivered the deed. In any event, Mr. Mathews, who acted as the agent for plaintiffs in the transaction, in his letter to Mrs. Wagner stated:

“I might mention that my friend is a canny Irishman who doesn’t want to' pay unless the deal goes through; so you are to send the papers to me, and I am only to deliver the same to him if the deal goes through and he hands me the twenty-five dollars, which I would immediately forward to you, otherwise I would return the paper with whatever expense you go to.”

Plaintiffs say they relied upon the record, which showed only the deed from Dickerson to the Union Trust Company in trust, neither of the trust agreements having been recorded, but, as I have stated, the preponderance of the evidence supports the conclusion that plaintiffs were informed that conditions forbade the trust company to convey the property except with the assent of Mr. Irvine, and later Mr. Irvine told them that the property was not for sale. It is evident that plaintiffs regarded the conduct of the trust company with suspicion, and, in view of the record of the title, as denying to them an opportunity to procure property which, for personal reasons, they wished to own for a home. There was, probably, some misunderstanding concerning the position of the trust company and the interest of Mr. Irvine. But there are to be considered the legal and equitable rights of the real parties in interest, whose mutual relations appear to be agreeable, none of them desiring to do anything not approved by the others. Plaintiffs are in a court of equity, seeking equity, and, in view of the determined facts, there is no equitable principle which requires the court to decree, none that would excuse it in decreeing, the relief prayed for in the bill.

The decree below is therefore affirmed, with costs to the defendants.

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