text:
    MOORE v. MACHEN.
    1. Witnesses — Competency — Matters Within Knowledge oe Decedent.
    3 Comp. Laws 1897, § 10313, prohibiting the opposite party, in a suit prosecuted or defended by the x>ersonal representative of a deceased person, from testifying to matters which, if true, must have been equally within the knowledge of the deceased, does not render the personal representative incompetent to testify in behalf of the estate as to matters within the decedent’s knowledge.
    3. Estates oe Decedents — Replevin—Demand.
    In replevin by the personal representative of a deceased person, proof of a demand made by plaintiff, as the authorized agent of the deceased, before his death, will support the action.
    3. Same — Authority oe Agent.
    Plaintiff in such action is a competent witness to show that he was authorized and directed to make such demand.
    4. Witnesses — Competency — Transaction in Absence oe Deceased.
    3 Comp. Laws 1897, § 10213, prohibiting the opposite party, in a suit by the personal representative of a deceased person, from testifying to matters which, if true, must have been equally within the knowledge of deceased, does not forbid the defendant in a replevin suit, who had been the housekeeper of the plaintiff’s intestate for many years, from testifying that a portion of the household property replevied had been purchased by her in decedent’s absence with money furnished by her husband.
    5. Gift — -Evidence—-Relationship of Parties.
    Where, in an action of replevin by an administrator to recover property of his intestate, there is no testimony directly tending to sustain defendant’s claim that the property was given to him by decedent, evidence of the friendly relations existing between them is inadmissible for the purpose of showing a probability that the gift was made.
    Error to Wayne; Frazer, J.
    Submitted April 5, 1900.
    Decided May 18, 1900.
    Replevin by Joseph B. Moore, administrator of the estate of J. Wilkie Moore, deceased, against John J. Machen and Elizabeth Machen. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Brenncm, Donnelly & Van De Mark and Selling & Hatch, for appellant.

      George F. Robison and Sumner Collins (Walter Barlow, of counsel), for appellees.
   Hooker, J.

Joseph B. Moore, in the capacity of administrator of his father, J. Wilkie Moore, of Detroit, replevied from the defendants, who are husband and wife, some articles of household furniture, which at the time of the replevin were in the residence which had been occupied by J. Wilkie Moore until about two weeks before his death. Elizabeth Mackenzie became the housekeeper of J. Wilkie Moore on April 25, 1885, and she married John J. Machen at Mr. Moore’s house on December 24, 1890, and they remained at the house of Mr. Moore until his death. About two weeks before J. Wilkie Moore died, he was taken to the house of his son, the plaintiff, where he subsequently died. Upon the trial the defendants claimed that some of the articles replevied had been purchased by Mr. and Mrs. Machen of Mr. Moore, and others had been given to her by other persons.

Mrs. Machen was permitted to testify that many of the articles had been purchased by her without the knowledge of Mr. Moore, and paid for by money furnished by her husband. This testimony was taken subject to the objection that it was within the statute excluding the testimony of a party as to facts equally within the knowledge of the deceased.

Counsel were not permitted to show by the plaintiff that, by direction and authority of his father, he demanded the delivery of the property during the latter’s lifetime. This appears to have been excluded upon the ground that the plaintiff was the son and heir of J. Wilkie Moore, and that his testimony was inadmissible under the statute excluding testimony of facts equally within the knowledge of the deceased. We think this a misapplication of the statute. He did not stand in an antagonistic relation to the estate, but his testimony was offered in its behalf, and was, therefore, admissible. The court instructed the jury that:

“In order to maintain this action, it is essential that the plaintiff should prove either that there was a wrongful conversion of the property upon the part of the defendants, or that he had demanded of the defendants possession of the property, and it had been refused. In either of these cases the plaintiff would be entitled to maintain the action, providing the plaintiff establishes, by evidence satisfactory to you, that, at the time the writ was issued, he was entitled to the possession of the property.”

The exclusion of this testimony was, therefore, injurious, as it tended to prove a demand. There was testimony of another demand, made after the intestate died, but both alleged demands were disputed. We are of the opinion that a demand made by J. Wilkie Moore, or his authorized agent, before his death, would be all the demand required to support this action. Proof of the agent’s authority would be necessary, however, before the demand would avail. If J. Wilkie Moore directed his son to make the demand, it was all that was necessary; and, as it might be proven by the testimony of any one who heard the direction given, so, too, it might be proven by that of Joseph B. Moore himself. It is true that it was the statement of another, but it was res gestee.

Mrs. Machen was allowed to testify that she purchased some of the articles with money furnished by her husband, and that J. Wilkie Moore was not present at the time. The plaintiff claims that this was not admissible under the statute that prohibits an adverse party from testifying to matters equally within the knowledge of a deceased person in an action brought or defended by his representative. He says that the question was the ownership, and that the deceased must have known whether he owned such property, and that this testimony was an indirect way of proving that he did not own it. Counsel cite some cases in point from other States, but our statute has not received so liberal a construction. Counsel cite several cases which sustain the ruling. Wheeler v. Arnold, 30 Mich. 304; Webster v. Sibley, 72 Mich. 636 (40 N. W. 772); Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143); Pillard v. Dunn, 108 Mich. 301 (66 N. W. 45); Schmitz v. Beals, 115 Mich. 112 (73 N. W. 109).

Many questions are raised over the introduction of evidence. Counsel for the defendants sought to justify some of this testimony upon the ground that it tended to show friendship on the part of J. Wilkie Moore for Mrs. Machen, and tended to render it probable that some of these articles were given to her by him. If there was any testimony directly tending to prove that he gave any of the articles to her, proof of friendly relations might be admissible, otherwise not. There was some testimony admitted, however, that was immaterial, and the learned circuit judge recognized this, but admitted it as cross-examination upon subjects opened by plaintiff’s counsel. As the cause must be reversed for the reason already stated, it is unnecessary to discuss this testimony.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DETROIT PHARMACAL CO. v. BURT.
    Landlord and Tenant — Surrender oe Lease — Evidence.
    Evidence that the members of a firm, 'who were in possession of premises under a written lease for a term of years, after failing in business, informed the lessor that they could not pay rent any longer, but that they expected a corporation would be formed to continue the business, and that such corporation was subsequently organized, to which bills were rendered for the rent falling due under the lease, which bills were paid in checks of the corporation by one of the copartners, who continued to take part in the business,— is insufficient, in the absence of proof of any express agreement that the original lessees should be released, to show that their liability to the lessor ceased with the formation of the corporation.
    Error to Wayne; Donovan, J.
    Submitted April 5, 1900.
    Decided May 18, 1900.

      Assumpsit by the Detroit Pharmacal Company against Lou Burt and Myrtle P. Hurlburt for rent. Prom a judgment for defendants, plaintiff brings error.
    Reversed.

      Gray & Gray (Henry M. Campbell, of counsel), for appellant.

      Moore & Moore, for appellees.
   Hooker, J.

Burt & Hurlburt, jewelers in Detroit, took from Arthur Bassett a written lease for 10 years of a store building in Detroit. Bassett afterwards sold the premises, subject to the lease, assigning his interest therein, to the plaintiff. After occupying a few years, Burt & Hurlburt failed. In a short time the business was resumed by a corporation organized for the purpose, under the name of the Burt & Hurlburt Company, which, after some years’ occupancy, also failed, and abandoned the premises. Plaintiff thereafter rented the place so far as it could, and at the close of the term brought this action against the defendants to recover the rent due according to the terms of the lease, giving credit for the amounts received from the renting. The defendants claimed that upon their failure they informed plaintiff of the fact, and that they could not pay rent longer, but that they were expecting that a corporation would be formed to continue their business, and, if so, plaintiff could probably rent the premises to it; that, after the corporation was formed, it was treated by the plaintiff as its tenant, and that the effect was an acceptance of the company by plaintiff as its tenant. They also claim that the plaintiff afterwards accepted a surrender of the lease from the company,,and took possession. The jury found a verdict for the defendants, and the plaintiff has appealed.

There was evidence showing that the plaintiff was informed that Burt & Hurlburt had failed, and could not continue to occupy .the premises, and that thereafter a concern known as the Burt & Hurlburt Company occupied and paid rent. It does not appear that the plaintiff assented to release Burt & Hurlburt, or that it had any dealings with the Burt & Hurlburt Company, further than to make bills against and collect rent from it during the time it occupied. The checks of the company were delivered by one of the defendants, who took part in the business, after the company was formed, as an employé, if nothing more; and what rights the company had it acquired from Burt & Hurlburt, and not from any new leasing by the plaintiff. We think that the testimony did not warrant the instruction contained in defendants’ fifth request, viz.:

“If it was agreed between Arthur Bassett, the original lessor of the lease in question, and the partnership doing business under the firm name of Burt & Hurlburt, that Burt & Hurlburt should abandon the premises, and the premises should be leased by Bassett to a new corporation, if a new corporation was formed, and assumed the name of Burt & Hurlburt Company, and said Bassett accepted Burt & Hurlburt Company as tenants, and rendered his bills to that corporation for his rent, and received from that corporation its checks for said rent, then there was a surrender and cancellation of the lease by operation of law, and the verdict in that case will be for defendants.”

Other requests upon the same subject were not supported by the evidence. Schieffelin v. Carpenter, 15 Wend. 400; Foley v. Dwyer, 122 Mich. 587 (81 N. W. 569); Wineman v. Phillips, 93 Mich. 223 (53 N. W. 168); Stewart v. Sprague, 71 Mich. 50 (38 N. W. 673).

It is contended that the court should have directed a verdict for the plaintiff, as requested. We think otherwise, as there is testimony tending to show a surrender of the lease and occupancy by the plaintiff after the failure of the Burt & Hurlburt Company. Baumier v. Antiau, 65 Mich. 31 (31 N. W. 888).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    GRENIER v. HILD.
    1. Trover — Conversion of Leased Property — Evidence.
    In trover for the conversion of leased property, claimed to have been wrongfully taken by defendants from the possession of plaintiff’s lessee, the lease was properly admitted in evidence, as a link in the chain of testimony, as against the objection that it allowed plaintiff to make testimony in her own interest.
    3. Trial — Remarks op Counsel — Reprimand.
    Objectionable remarrks of plaintiff’s counsel, for which he was at once reprimanded by the court, who instructed the jury to disregard them, do not entitle defendant to a reversal.
    3. Trover — Evidence—Instructions.
    Defendants in trover are not entitled to an instruction based upon a claimed estoppel of the plaintiff because of her assent to a certain levy, where the fact of a levy is not established in the case by any legal evidence.

      4 Same — Defenses—Fraudulent Conveyances.
    Defendants in trover, who, so far as the record discloses, took the property with no legal right whatever, are not in position to question plaintiff’s title on the ground that the conveyance under which she claims was in fraud of the grantor’s creditors.
    Error to Baraga; Haire, J., presiding.
    Submitted April 6, 1900.
    Decided May 18, 1900.
    Trover by Odile Grenier against John H. Hild, Charles D. Hanchette, and the Northern Michigan Building & Loan Association. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Dunstan & Hanchette, for appellants.

      E. J. Mapes, for appellee.
   Moore, J.

The plaintiff sued defendants in an action of trover, and recovered a judgment against them, for the conversion of personal property which she claimed to own. The record does not purport to contain all of the testimony offered in the case. The plea of the defendants was simply the general issue. Upon the trial they were allowed to amend their plea by giving notice that they would show that plaintiff was not the owner of the goods, but that they were conveyed to her by her husband in fraud of defendant the Northern Michigan Building & Loan Association, and that, as to said defendants, Theophile Grenier is still the owner of said goods.

On the trial of the case plaintiff offered in evidence a lease of the property in question, made between her and Charles Gamache. It is said that this is error, because it allowed plaintiff to make testimony in her own interest. It was the claim of plaintiff that she owned the property in question, that she leased it to Charles Gamache, and that, while it was in his possession as her tenant, it was wrongfully taken from him by defendants, and converted to their own use. As one link in her chain of testimony, we think it was not error to permit the receipt of the lease in evidence.

It was claimed by defendants that plaintiff stood by and saw a conversion of this property without claiming to be the owner. On the cross-examination of a witness upon that phase of the case, the following occurred:

“Q. She made the remark that they were being robbed by the building and loan association ?

“A. No; I don’t think she did.

“Q. They took it very quietly, of course; didn’t manifest any anger ?

“A. Took it with as good grace as could be expected.

“ Q. They took it in about the same way that any other person would that was being crucified, did they not? (To which counsel for the defendants then and there objected to the style of examination, and to the word ‘crucified’ being used by the plaintiff’s counsel.)

The Court: The jury will pay no attention to that word ‘crucified.’ And Mr. Mapes should not use such language, and must refrain from it.”

This is said to be reversible error. If counsel are right, few cases come to this court which would not be reversed. The circuit judge at once instructed the jury that they were not to consider the objectionable word, and reprimanded the attorney.

The court refused to give a request reading as follows:

“It appearing from the undisputed testimony that the plaintiff was informed, had fpll knowledge, of the levy, and was present part of the time of the levy, and had full knowledge of the time of the sale, and all the acts done under the execution, and was given a chance to select her exemptions, and that she did not at any time disclose the fact that she claimed ownership of the goods taken, she is now estopped from claiming any ownership in the goods levied upon, and I charge you to render a verdict for the defendants.”

This is said to be error. There was no notice given that defendants would seek to justify the taking of the property by virtue of any process of court. While some of the witnesses in their oral testimony spoke of a levy having been made, there is nothing in the record to show any judgment; of any court, nor any execution issued by reason of such a judgment, nor any levy by virtue of any execution. So far as the record discloses, the defendants took the property without any right whatever to do so, and there was no legal evidence upon which to base the request.

The judge refused to give the following request:

“ If you find from the evidence that the plaintiff’s husband conveyed the goods sought to be recovered in this case to the plaintiff in fraud of creditors, she has no such title as would enable her to bring this action, and you will render a verdict for the defendants.”

His refusal is said to be error; counsel citing Stephenson v. Little, 10 Mich. 439; Parkhurst v. Jacobs, 17 Mich. 302; Pierce v. Hill, 35 Mich. 199 (24 Am. Rep. 541). We have already spoken of the condition of the pleadings and of the record. The cases cited by counsel are not in favor of their contention. In this case the plaintiff says the property belongs to her. Her husband is not contesting her right to it, but, on the contrary, says it is hers. So far as the case of Parkhurst v. Jacobs is applicable, it is in favor of the position of the plaintiff. In Pierce v. Hill a judgment creditor was seeking to question the transaction. He had shown a valid judgment, a valid execution, and a valid levy. In this case defendants had shown neither. The case of Fry v. Soper, 39 Mich. 727, is in point, and is against the contention of defendants. See, also, Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834).

The judgment is affirmed.

The other Justices concurred.


text:
    MARTIN v. HAFER.
    Deeds — Construction.
    A husband conveyed land to his wife by a warranty deed conditioned that, if she should abandon him, the land should revert to him, if he, his heirs or assigns, should pay the wife §250, and that, if he should die leaving her a widow, the land should belong to the wife during her life, and at her death should revert to his heirs on payment of §250 to the wife’s heirs. After the husband’s death, the wife quitclaimed the land to a third person. Held, that the wife took title in fee simple, subject to a reversion on condition subsequent, and not a conditional life estate with remainder to her heirs, and that they had no interest in the property at her death.
    Case made from St. Joseph; Yaple, J.
    Submitted April 10, 1900.
    Decided May 18, 1900.
    Ejectment by Charles H. Martin against Christ Hafer and others. There was a judgment for defendants, and plaintiff assigns error.
    Affirmed.

      Alfred Akey and T. C. Carpenter, for appellant.

      Loveridge & Loveridge and H. P. Stewart, for appellees.
   Hooker, J.

The plaintiff appeals from a judgment in defendants’ favor in an action of ejectment. The finding of facts shows that on February 3, 1866, Jacob Bear, a widower, became the owner of certain lands, subject to a mortgage for $500, held by James C. Bishop, and that he entered and resided upon them until his death, which occurred October 1, 1868. Soon after February 3, 1866, Jacob Bear married Malissa Martin, who was at that time the mother of the plaintiff, Joseph Martin, and two daughters. On March 25, 1867, Jacob Bear deeded the land to Malissa Bear. The conveyance was a warranty deed, but contained the following provision:

“This conveyance is made, however, with this express understanding, that if the said Malissa Bear abandons and leaves the said Jacob Bear at any time before the said Bear’s death, then and in such case the above-described premises is to revert back and become the property of the said Jacob Bear, provided the said Jacob Bean, his heirs or assigns, shall pay the said Malissa Bear the sum of two hundred and fifty dollars, with interest from this date; and it is further agreed between the parties that, in case the said Jacob Bear shall die leaving the said Malissa Bear a widow, then and in such case the above-described premises shall belong to the said Malissa Bear during her lifetime, and at her death to revert and become the property of the heirs at law of the said Jacob Bear, provided said heirs at law shall pay to the heirs of the said Malissa Bear the said sum of two hundred and fifty dollars, with interest.”

Subsequently, Mr. and Mrs. Bear executed two mortgages upon the land to James W. Mizner, one for $80, and one for $96.80; one being given in 1867, and the other in 1868. After Jacob Bear’s death, Malissa conveyed the land to James W. Mizner by quitclaim deed dated September 16, 1870. At this time he was the owner of the two mortgages given to him. Elizabeth and Samuel Bear, children of Jacob Bear by a former wife, conveyed the premises by guardian to Mizner, on March 4, 1872, and two days later Mizner and wife conveyed them to their daughter, Julia A. Gilson, subject to the mortgages, and on April 15, 1875, she conveyed them to John Libbing, and on April 6, 1880, he conveyed them to the defendants. Each grantee occupied the premises from the reception of his or her deed until they were conveyed to another. Malissa Bear died in October, 1896. She left surviving her the above-mentioned plaintiff, and Joseph Martin, and a grandchild whose mother was a daughter of Malissa by her former marriage. There has been no payment of $250 by the heirs of Jacob Bear to the heirs of Malissa Bear.

The court found, as propositions of law applicable to the case:

1. That,, as between the parties to this suit, the morR gages did not merge in the title received by Mizner, and are a valid lien upon the premises.

2. That Malissa Bear took title in fee, subject to the right of reversion, either to Jacob Bear or his heirs, upon the happening of the events mentioned in the deed.

3. That none of these events happened, and her deed to Mizner conveyed title in fee simple, subject to the mortgages upon the lands.

It is contended by the plaintiff that the deed from Jacob Bear conveyed only a conditional life estate to Malissa Bear, with* remainder to her heirs, subject ■ to a condition subsequent. Counsel for .the defendants maintain that she took a title in fee simple, subject to a reversion upon condition subsequent.

The deed was a warranty deed, and in its granting clause conveyed an absolute title in fee simple to Malissa Bear. But this was subject to a limitation in the habendum, which is so clear and unequivocal as to leave no doubt of the intention upon the part of Jacob Bear to limit the absolute grant. See Downing v. Birney, 112 Mich. 474 (70 N. W. 1006). The habendum does not contain the term “remainder,” but does contain the word “revert,” under circumstances which imply an intent that a qualified fee should pass to Malissa Bear. Had Malissa Bear continued to live with Jacob Bear until the time of her death, leaving him surviving, the condition would have been discharged in favor of her heirs, or her assigns if she had previously conveyed her interest. It was only upon one of two conditions that the heirs of Jacob Bear could acquire this property, viz.: (1) That she abandon Jacob Bear during his life; (2) that she survive him. In either of these cases the land would or might revert to Jacob Bear or his heirs upon payment to the heirs of Malissa of $250. Upon this possibility rests the claim of the plaintiff. He argues that he is entitled to this land because the heirs of Jacob, who had some reversionary rights under Jacob Bear’s deed, have not cared to assert them by paying $250 to the heirs of Malissa. There is nothing in the deed which grants to the heirs of Malissa any title to the property except by way of inheritance from her. This she cut off by her deed.

But this title which she conveyed was subject to the right of Jacob Bear’s heirs to acquire the property upon her death by paying $250, to which right the last two mortgage interests were also subject. Had the deed provided that the $250 should be paid to her heirs or assigns, there would be no difficulty. But the provision, being for payment to her heirs only, gives some plausibility to the claim that it was designed that they should have a charge upon this land. But we think the deed should not receive such a construction, and, if it were to be thus construed, it would not follow that they have title or right to possession. Had she died without conveying to Mizner, the land would have descended to her heirs, subject to the condition and the mortgages. But, as she conveyed it, there was nothing to descend, and her grantee had a perfect title, subject to the rights of Jacob Bear’s heirs, which he has acquired.

There is no necessity for discussing the question of merger.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    SHINGLEMEYER v. WRIGHT.
    1. Appeal — Briefs—Statement of Facts.
    Under Sup. Cfc. Rule No. 40, providing that the brief of an appellant shall contain a clear statement of the facts, the questions involved, and the manner in which they are raised, which statement the court will consider sufficient and accurate unless the opposite party shall point out in his brief wherein it is insufficient or inaccurate, where an appellant submits a statement in compliance with the rule, the appellee is limited to the right to point out omissions or inaccuracies therein, and he is not entitled to have considered by the court an entirely independent statement framed from his own point of view.
    2. Slander — Communications with Police Officers — Privilege —Malice.
    In an action for slander, a letter written by defendant to the superintendent of police of a certain .city, in which plaintiff is accused of the theft of defendant’s bicycle, and statements by defendant accusing plaintiff of the theft, made to police officers connected with the detective department, are inadmissible to show malice, as they are privileged communications.
    3. Same — Publication.
    An action of slander, based upon a charge of theft, cannot be maintained where the only third person to whom the charge was repeated was a police officer, whom plaintiff sent for for the express purpose of having the statement made in his presence.
    4. False Imprisonment — Evidence.
    Plaintiff sought an interview with defendant at his office, where she was put under no restraint by defendant, could have left at any time, and finally did leave of her own accord, but voluntarily returned with an officer, who took her into custody, stating that, “ Under the circumstances, I guess, as he [defendant] accuses you of stealing his bicycle, you will have to go to the station.” It was not shown that this statement was made in the presence of- defendant, nor was it shown that the arrest was made at the request of defendant. Held, not to constitute false imprisonment.

      Error to Wayne; Lillibridge, J.
    Submitted April 10, 1900.
    Decided May 18, 1900.
    Case by Katherina Shinglemeyer against Oliver A. Wright for slander and false imprisonment. From a judgment for plaintiff, defendant brings error.
    Reversed.
    This is a suit by one Katherina Shinglemeyer against Oliver A. Wright by capias for an alleged slander claimed to have been uttered by defendant to one Henry, a policeman, upon the 16th of July, 1898, and for a false imprisonment which the plaintiff claims to have suffered upon the same day at the hands of the said Henry, acting under the instructions of the said defendant.
    The plaintiff’s testimony was to the following effect: That previous to April, 1898, she had had trouble with George Wright, a brother of the defendant, living at Columbus; that in April, 1898, she caused the said George Wright to be arrested upon a charge of bastardy, upon which charge he was put under bond, and had also sued him for breach of promise of marriage. It is the claim of the plaintiff that, some time in the fall of 1897 or the spring of 1898, George Wright came to the place where she was working, and borrowed #22 from her, and that Oliver Wright, the defendant, was with him, and' stood outside of the door. She stated upon cross-examination that she had seen Oliver Wright only once before, and that was in Delaware, Ohio, and that she did not know Oliver Wright well enough to say whether it was Oliver Wright who called with George Wright that night or not. Upon the 3d day of July, 1898, the plaintiff came to Detroit, where Oliver Wright resided, and upon the witness stand claimed that her purpose was to get the $22 which she claimed George Wright had borrowed for defendant’s use from her at the time heretofore referred tp. She also stated that the moving cause for her coming to Detroit was to see George Wright.
    Plaintiff claims she went to a boarding house on Henry street, and remained there about three days, having arrived on Sunday; and then went to work for Mrs. Goldberg, doing general housework. The following Sunday, the 10th of July, she went to the residence of defendant, and asked for George Wright. She testified that she was informed by defendant that George Wright was not there; that she stated who she was, and that she was asked upstairs; that she asked for the money which she claimed George Wright got from her, and that Oliver Wright denied that he knew anything about it; that Oliver Wright at that time advised her to let the court settle her difficulties with his brother, but she stated that she could not wait longer, and had to have something right away. She testified further that at the time Oliver Wright told her to come up to his office in the Chamber of Commerce, and that he would talk the matter over with her; that at that time he made no threats whatsoever, and told her that, if his brother was guilty of the offense as charged by her, she could establish his guilt without question; that she had no reason to believe that Oliver Wright had any malice towards her at that time, except 'because Oliver seemed to think that she had not let George have any money.
    Plaintiff claims that upon the 16th day of July — the Saturday following the interview with Oliver Wright at his residence — she went to his office in the Chamber of Commerce Building at about 3 o’clock in the afternoon. George Wright was in the general office, which was situated between the private office of Oliver A. Wright and the private office of B. B. Baines, both of whom used the general office in common. George Wright went from the general office into the one marked “Mr. Baines,” and immediately thereafter Oliver Wright came into the office from the room into which George had gone. Plaintiff claims that Oliver Wright said, “ Did you bring my wheel back?” and that she said; “I ain’t got your old wheel;” and he said, “Yes, you have stolen my wheel,” and said that he could prove it. At the time of this conversation there was no one present besides plaintiff and the defendant. She also claims that he stated that he would have a warrant out for her if she did no.t leave his office. Thereupon she went to the telephone, and called up the central police station, and asked them to send over an officer. She stated that, if she had left the office before she had telephoned, there was no danger- of her having been arrested, or a warrant, or anything of that sort, but that she was not going to have him stand there saying that she was a thief, and that she had made up her mind that she was going to make him prove it. After she called up the central police station, she waited for the police to come over for a long while, and made no effort to leave the office. No policeman appearing, she called up the police station a second time, and told them again to send over a policeman. She claimed that Mr. Wright was present when she telephoned the second time, and that she could have left the office at that time if she had desired. The officer did not come the second time she called, so she waited half an hour, and called up the police station a third time, and told them to send over an officer. The plaintiff claimed that, at some time after she had called up the police station the first time, she tried to get out of the office, but could not do so. She at first said it was after she had telephoned the second time. Again, she testified that she called up the second time because she wanted the police to hurry up, and she did not know whether she was locked up at that time or not; that, at one time while she was in the office, the police department called up Mr. Wright’s office, and Mr. Wright answered the telephone; that while he was at the telephone she could have left the office if she had wanted to, and that she stayed because she wanted to. Finally, she stated that she did not try to leave the office until she had called up the last time.

      “Q. As a matter of fact, you did not try to get out before the second time [you telephoned] ?

      “A. I don’t believe I did.

      “Q. You are certain of that?

      “A. Yes, I am certain.
    ‘ ‘ Q. As a matter of fact, you did not call up the police department the second time because you could not get out?

      “A. No, I think that the reason I called up the second time, or the third time, was because I wanted them to hurry.”
    After she had called up the police station the third time, and no officer had come, she left the office without any interference upon the part of the defendant, went down the elevator, and near the door met the policeman Henrjn She testified that there was nothing to prevent her going to the Goldbergs’, or any other place, at that time. Instead of that, she brought the policeman back to Mr. Wright’s office, and herself stated to the policeman that Mr. Wright accused her of stealing his wheel, and that she wanted to see whether he could do so. The policeman went into Mr. Wright’s private office, and said something which the plaintiff did not hear; and witness testified that there was nothing to prevent her leaving the office at that time if she had wanted to, She also testified that Mr. Wright stated that she did steal the wheel, and that he (Mr. Wright) wanted her to be taken over and locked up. She /testified that the policeman told her that she had to go along with him. There is no evidence in the case that Mr. Wright was present when any such thing was said to the plaintiff, if it was said. The plaintiff testified that-she went over to the police station with the officer, and was asked a few questions there, and then was taken down by two detectives to the Brush-Street Depot, to be identified; that the baggageman at the Lake Shore station said she was not the woman who had checked a man’s wheel to Toledo on the evening of the 10th, and that the detectives then put her on the car, and she went home.
    Upon the following day the plaintiff testifies that she went up to the defendant’s residence, with a rubber hose, and that she was going to thrash him; that she did,not start to thrash Oliver, but did start to thrash George; that she commenced to thrash him without saying a word, and George took the rubber hose away from her, without using any more force than was necessary. Plaintiff testified that she on that day (Sunday) told Oliver Wright that he had accused her of stealing his wheel, and that she was going to make it mighty hot for him some time. She testified that Oliver Wright told her that if she would go to Columbus he would fix everything all right, and that they would come for her that night, and that they did so. She testified that they came up to see her that same evening, and that she agreed to go to Columbus the next morning; that she went down to the station the next morning, but did not have the money to pay her fare; that neither the defendant nor his brother had the money to give her to buy a railroad ticket, and that she thereupon went back to the defendant’s office, where he gave her four dollars, and stated that he would loan it to her, and she gave a receipt for it as a loan; that she left that afternoon for Columbus, and stayed there just one week.
    Plaintiff claimed that at one time defendant had called her “a crazy old thing,” but when that was, or in whose presence it was uttered, she did not know. Plaintiff testified, when asked when she had first made up her mind to sue the defendant, that she told her attorney the 2d of January, 1899, that she wanted to get it started before she went home; that she had thought of it all along, but that she was not ready. She was then asked the question when she had first made up her mind to begin the suit, and she answered, “I had it in my mind all the time.” Subsequently she was asked whether she intended to bring this suit before the 1st of October, 1898, to which she replied, “I meant to sue him from the first time.” After the occurrences which we have narrated fully, witness testified that she told several people that she was Oliver Wright’s sister-in-law; that she had a child 3 years old; that she had a suit in Cleveland, where she was suing her husband for divorce; and that none of the statements were true.

      Thomas Henry, the officer who it was claimed by plaintiff was the person to whom the alleged slander had been uttered, and who was the person who made the alleged arrest complained of, testified that on the 16th of July he was sent over to the Chamber of Commerce Building, and met the plaintiff in the lobby of that building; that she spoke to him first, and told him that Mr. Wright accused her of stealing his wheel, and had locked her in his office; that he persuaded her to go upstairs with him, but did not compel her to go; that when he entered the office he asked what the trouble was; that Mr. Wright said: “This girl is coming around here, and raising a disturbance, and trying to make trouble for my brother. From what I can learn, she is a loose woman, and not the kind of a woman the police want in Detroit.” Witness ■testified that Miss Shinglemeyer was the first person who said that she had been accused of stealing the wheel. Witness testified that the plaintiff said first, “ He accuses me of stealing his bicycle, and says I am a thief, and I am going to make him prove it.” Witness also testified that the defendant said Detectives High and Larkins were looking for her, and that he (defendant) had learned that a woman had checked a man’s wheel from Detroit to Toledo by the Lake Shore baggageman. Witness, although pressed by leading questions, did not testify that the defendant asked him to arrest the plaintiff. He testified further that he walked with the plaintiff over to the central station, and turned her over to Detectives High and Larkins.
    Detectives High and Larkins were called as witnesses for the plaintiff. They testified, under objection and exception, that they had called over to the defendant’s office on the morning of the 11th of July; that the defendant told them that he had had his wheel stolen, and suspected some woman with whom his brother had trouble in Columbus ; that he did not know her name, but that he could find it out, and let them know. They testified further that they went over to his office again upon the 16th, in response to a telephone message, and that he told them that he knew who the party was who stole his wheel; that her name was Kitty Shinglemeyer, and that she lived on South Fourth street, in Columbus, Ohio, with her brother; that he was positive she stole the wheel, as he had the description of a woman answering her description, who checked the wheel over the Lake Shore to Toledo; that he had written a letter to the chief of police of Columbus; that the defendant had said that he did not know how the officers felt about a woman of that character, but that she was not the kind of a woman that he thought the police department wanted, and that she was a bad woman; that plaintiff was brought down to the station in the afternoon of the 16th of July, in the custody of the policeman Henry; that they took her in charge; took her down to the Lake Shore baggage-room, and that the night baggageman, after seeing her, said she was not the party that checked the wheel. The defendant was called to the stand by the plaintiff, and testified that he had written a letter to the chief of police of Columbus. The letter, and the testimony of witnesses High and Larkins, were admitted by the court under objection and exception that they were privileged, and were not counted upon in the declaration. The letter reads as follows:
    “Detroit, Michigan, July 16, 1898.
    .“Superintendent oe Police,
    “Columbus, Ohio.

      “Dear Sir: A day or two ago I wrote you concerning my bicycle, which was taken from my residence last Sunday evening. I stated that I suspected a party whose home is in Columbus, Ohio, of having committed the theft. My suspicions are now confirmed. We have been able to trace the wheel to the Lake Shore Depot, where it was checked last Sunday night to Toledo. It left Detroit about 9:40. The woman whom I suspect is Kittie Shinglemeyer. Sha probably rechecked the wheel for Columbus. We have been able to trace it thus far from the unusual circumstance of a woman checking a gentleman’s wheel. I cannot learn on what road she left Toledo, but you might be able to get some information which would be of use to you in finding the wheel at either the Union Depot or the Ohio Central Depot at Columbus. Miss Shinglemeyer has a brother living, I think, on South Fourth street, Columbus. If I am not mistaken, she makes her home with her brother. I shall probably be in Columbus Monday to look after the matter personally. If in the meantime you are able to recover the wheel, I shall be very glad to reward the one to whom such reward would be due.”
    The testimony of the defendant and his witnesses was upon all material questions diametrically opposed to that of the plaintiff.

      Belling & Hatch, for appellant.

      Frank C. Cook and B. E. Van Syckle, for appellee.
   Long, J.

(after stating the facts). The above statement of facts is taken from appellant’s brief. It is a full compliance with Sup. Ct. Rule No. 40, with references to the record to support the statements. Counsel for appellee concede the correctness of the statement, but they say:

‘ ‘As several items contained in the record do not appear in the statement in appellant’s brief, and are necessary to a full understanding of the questions raised, we desire to submit this short statement of facts.”

Five pages of their brief are then occupied with a statement. This is not a compliance with the rule, which reads as follows:

“The brief of a party bringing a cause into this court shall contain a.clear and concise statement of the facts of the case, distinct from the argument, and of the errors upon which he relies, the questions involved, and the manner in which they are raised. The court will consider such statement sufficient and accurate, unless the opposite party shall point out in his brief wherein the statement is insufficient or inaccurate.”

Counsel for appellee cannot maKe a statement of facts from their point of- view, and leave this court to examine the record and both statements, and determine, which is' correct. Under this rule it is the duty of the appellee to point out what essential statements are omitted, and to state them as an addition to appellant’s statement, with references to the record. We must, therefore, take the statement made by appellant’s counsel as correct. The references given by them to the record fully sustain it.

The court was in error in admitting the above letter and the statements made by defendant to the two detectives High and Larkins in.^regard to the larceny of his wheel. These were privileged communications. They were introduced and admitted for the purpose of showing malice. The trial judge was in doubt as to their competency, but finally admitted them. Privileged communications cannot be used for that purpose. Defendant’s property was stolen, and it was not only his privilege and right, but his duty, to give to the detectives, who, in this case, were specially .appointed for the purpose, all information he had, and, if he had suspicions of any person, to state who the person was, and the reasons for suspecting him. Such communications are made in the strictest confidence, and are as sacred, in the eye of the law, as the communications between client and lawyer, or patient and physician. To be evidence of malice, these communications must in themselves have been malicious, and would, therefore, form the basis themselves for an action for slander. If this be the law, no person would be safe from prosecution in communicating to police officers, whose duty it is to examine into the case and hunt for the criminal, his suspicions, or statements which might tend to implicate a person. Public policy forbids the adoption of such a rule. These detectives were under legal, as well as moral, obligations to keep these communications secret. They were not made for publication, and the officers had no right to divulge them to others. It is very doubtful if these detectives could be compelled to disclose in court such privileged communications. Such officers, especially in large cities, are entitled to know from the citizen against whom a crime has been committed all his suspicions and knowledge, both in regard to the person suspected, and also in regard to his character and habits. The defendant did not make these statements for repetition. He made them for the exclusive use and benefit of the trusted and sworn officers of the law. They should have been forever locked in their breasts, and never disclosed; otherwise, few persons would dare to disclose to an officer the name of a suspect, or anything they had learned about his character.

In regard to the statement by defendant in the presence of the officer Henry, it was not a publication'.for which the law gives a remedy. She herself solicited the statement, and sent for the officer for the express purpose' of having the defendant repeat the statement in his presence. It would not have been stated to him except by her invitation. She might have left the defendant’s office. She waited some time for the officer to come, and then left, and, meeting the officer as she emerged from the building, came back with him for no other purpose than to ask him to repeat the statement in his presence. In Cristman v. Cristman, 36 Ill. App. 567, plaintiff was suspected of an assault with intent to murder. The defendant suspected the plaintiff, and so stated to an officer. Plaintiff took one King with him, and went to defendant’s house. King asked her, in the presence of plaintiff, if she had any idea who did it, to which defendant replied: “There is only two mean enough to do it, and Johnnie is one of them. Johnnie is the only one that would do it, and he is the one that did do it.” Held that plaintiff could not recover.

Where one received a letter containing libelous statements, and himself read the letter to others, held that he could not recover. Sylvis v. Miller, 96 Tenn. 94 (33 S. W. 921). There is no difference in principle between reading a letter to another and soliciting a person to make a similar verbal statement.

Where one sought from the superintendent of a railroad company a letter of recommendation for his friend, which letter was given, containing a statement that the person had left the service of the company during a strike, held that this was not publishing a libel. Kansas City, etc., R. Co. v. Delaney, 102 Tenn. 289 (52 S. W. 151, 45 L. R. A. 600). The following cases sustain the same doctrine: Irish-American Bank v. Bader, 59 Minn. 329 (61 N. W. 328); Heller v. Howard, 11 Ill. App. 554; Fonville v. McNease, 1 Dud. (S. C.) 303; King v. Waring, 5 Esp. 13; Smith v. Wood, 3 Camp. 323; Haynes v. Leland, 29 Me. 233.

Plaintiff repeatedly testified that she sent for-the policeman to see if she did steal his wheel, and that she was going to make him prove it. The maxim, ‘ ‘ Volenti non fit injuria,” applies.

Plaintiff was put under no restraint in the defendant’s office by him prior to the arrival of the officer. She sought the interview, could have left at any time, and finally did leave of her own accord, and voluntarily returned with the officer. She is the sole witness to testify that the defendant said he wanted her locked up. The officer does not testify that defendant said he wanted her arrested, and defendant expressly denies it. Whatever restraint the officer placed upon her, if any, is not shown to have been at the request of the defendant. The officer testified that he said to her:

“ ‘ Under the circumstances, I guess, as he accuses you of stealing his bicycle, you will have to go to the station.’ At first she said she would not go, and I .said, ‘You better go easily, because he accuses you of stealing his bicycle.’ ”

Whether this was said in the presence of defendant does not appear. She then went to the station with the officer, where she met the detectives High and Larkins, and went with them to the depot to see if she could be identified as the woman who checked a wheel to Toledo. The person checking the wheel failed to identify her, and she then went to her residence.

Under the uncontradicted testimony, the defendant could not be held liable for false imprisonment. If plaintiff was illegally restrained of her liberty, the officer alone is responsible for it. He was there at her request, and was acting for her, and not for defendant.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    TUFTS v. VERKUYL
    1. Sale — Warranty—Parol Evidence.
    In an action on a written contract of sale, the admission of evidence of a verbal warranty such as would be implied from the contract itself,— e. g., that the property was suitable for the purpose for which it was bought, — is not error, since it does not change the terms of the writing.
    2. Witnesses — Experts—Competency.
    Where it is shown that a witness has used soda fountains for 30 years, knows how to set them up, and is acquainted with their methods of working, he is properly allowed to testify as an expert as to why a particular fountain failed to work.
    Error to Ottawa; Padgham, J.
    Submitted April 10, 1900.
    Decided May 18, 1900.

      Assumpsit by James W. Tufts against John Verkuyl for goods sold and delivered. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Defendant gave plaintiff an order for a second-hand soda fountain; price $150; $35 to be paid on delivery, and balance to be paid in monthly sums, with interest at 6 per cent, from date of shipment. The fountain was shipped, but would not work. Plaintiff was notified. Defendant sent the apparatus to plaintiff’s agent at Detroit, who examined and returned it, but still it would not work. Defendant finally shipped the fountain to the plaintiff at Boston, and refused to give the note required by the contract. Defendant gave notice that the fountain was sold under a warranty, and that it was defective and worthless. This suit is for the balance of the purchase price, $125.
    Verdict and judgment for the defendant.

      Herbert Taft Boot, for appellant.

      George A. Farr, for appellee.
   Grant, J.

(after stating the facts), There was an implied, warranty that the fountain was suitable for the purpose for which it was bought. Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner, 55 Mich. 455 (21 N. W. 885); Little v. G. E. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554); Blodget v. Detroit Safe Co., 76 Mich. 538 (43 N. W. 451). Evidence of a verbal ■warranty, such as would be implied by the contract itself, did not change the terms of the written instrument, and it was not error to admit it.

One Hutty put up the fountain, and was allowed to testify what, in his judgment, was the trouble with it. This was objected to upon the ground that witness was not shown to be qualified. Witness had testified that he had been in the soda-fountain business 20 years, and was acquainted with them, — with setting them up, and with their method of working. This was sufficient to justify the admission of the testimony.

Several errors are assigned upon the charge of the court and the refusal to give some of plaintiff’s requests. We find no error in the rulings. The charge contained a clear, concise, and correct statement of the law governing the case, which it is unnecessary here to repeat. It is familiar to the profession.

Judgment affirmed.

The other Justices concurred.


text:
    MILLS v. MICHIGAN TRUST CO.
    1. Wills — Construction—Trust Estate — Income.
    Where testator left an estate composed principally of vacant city lots, which he placed in the hands of a trustee, to manage and control in such manner as. the trustee should deem best, and to pay a portion of the net income therefrom to his daughter, or to her legal guardian, for her support so long as she should live, and to pay the remainder of the net income to his wife during her life, and giving the trustee full power to sell and convey the lots, and to invest and reinvest the proceeds in such other property or securities as the trustee should deem for the best interests of the trust, a decree of the equity court commanding the trustee to sell a portion of the real estate to raise funds to support testator’s wife and child was erroneous, since, under the provisions of the will, only the income of the estate could be so used.
    2. Same — Administration—Widow’s Allowanoe-
    Where testator devised property in trust, the income to be used for the support of his wife and child, the probate court had authority to grant the widow and child a weekly allowance during the administration of the estate, which the trustee was required to pay whether the income of the estate alone was sufficient for the purpose or not.
    Appeal from Kent; Adsit, J.
    Submitted April 11, 1900.
    Decided May 18, 1900.
    Bill by Maude C. Mills, individually and as next friend of Helen C. Mills, an infant, against the Michigan Trust Company, trustee of the estate of Fred D. Mills, deceased, impleaded, etc., to construe the will of said deceased. From a decree for complainant, defendant appeals.
    Modified.
    T. F. & W. R. McGarry (Edwin F. Uhl, of counsel), for complainant.

      More & Wilson, for defendant.
   Moore, J.

Maude C. Mills is the widow of Fred D. Mills, deceased. Helen Clay Mills is their daughter. She is now about 9 years old. Mr. Mills died in February, 1894. He left a will, which was duly probated, He bequeathed to his wife their residence and certain personal property. The other provisions of the will which are important in this proceeding read as follows:

“I give, devise, and bequeath to the Michigan Trust Company, of Grand Rapids, Michigan, and its successors, forever, all my title and interest in and to that certain piece of land in said city of Grand Rapids which is bounded on the north by "Wealthy avenue, on the east by College avenue, on the south by Logan street, and on the west by Madison avenue, in trust, nevertheless, for the following purposes, viz.: To manage and control the same in such manner as it shall deem best, and pay the net income therefrom, after payment of taxes and all other expenses, or so much of said income as shall be necessary, to my dear daughter, or her legal guardian, for the support of my said daughter, Helen, so long as she shall live. At the death of my said daughter, I give, devise, and bequeath all of my interest in the said property described in this clause of my will to my legal heirs. I hereby give my said trustee full power and authority to sell, dispose of, and convey any part or all of my interest in said property on such terms and conditions as to said trustee shall seem expedient; and I do hereby give my said trustee power and authority to invest and reinvest the proceeds from said property in such other property or securities as said trustee may deem for the best interest of the trust.

“All the residue of my estate, of every name and nature, I give, devise, and bequeath to said the Michigan Trust Company, in trust, nevertheless, for the following purposes, viz.: To take possession of, manage, and control the same in such manner as said trustee shall deem best, and to pay one-third (i) of the net income thereof to my said wife, Maude C. Mills, so long as she shall live. At her death, I give, devise, and bequeath an equal undivided one-third (£) of the property conveyed under this clausemf my will to my then heirs at law. M_y said trustee shall pay the remaining two-thirds (f) of said net income to my dear daughter, Helen, or her legal guardian, for the support of my said daughter so long as she shall live. At the death of my said daughter, Helen, should she leave issue her surviving, I give, devise, and bequeath to said issue, by right of representation, and their heirs, forever, the equal undivided two-thirds (f) of the property conveyed under this clause of my will. Should my said daughter die without issue, I give, devise, and bequeath said equal undivided two-thirds (f) of said property to my then heirs at law. I hereby give my said trustee full power and authority to sell, dispose of, and convey any and all property which shall pass to it under this clause of my will, on such terms and conditions as it shall deem expedient ; and I do hereby give my said trustee power and authority to invest and reinvest the proceeds from said property in such other property or securities as said trustee shall deem for the best interests of the trust.

“The provisions made by me in this will for my said wife are in lieu of and in the place of all rights in my estate, of every name and nature, to which she would be entitled under the statutes of the State of Michigan, including all dower rights in my real estate, had this will not been made.

“I hereby appoint Charles M. Wilson, of said city of Grand Rapids, executor of this, my last will and testament ; and I hereby give my said executor full power and authority to sell and convey any and all property of which I shall die seised, including real estate.”

Mr. Wilson declined to act as executor, and the Michigan Trust Company was appointed in his place. During the settlement of the estate the probate court made an order that $35 a week should be paid to Mrs. Mills for the support of herself and daughter. Other proceedings were had, to which we deem it unnecessary to refer, except in the most general terms, as the questions involved are few, and their solution does not depend upon these proceedings. In September, 1898, the, estate was closed, and passed from the defendant as administrator to the defendant as trustee. At this time there was due and unpaid $360 of the weekly allowance which had been made to Mrs. Mills by the probate court. The estate on hand in September, 1898, consisted largely of unproductive vacant lots, for which there was no market. There was $4,500 worth of stock, estimating it at its par value, though it was doubtless worth more than that sum.

A few months after the estate passed to the trustee, this bill was filed, in which it was alleged that it was the duty of the trustee to so manage the property as to produce an income, that it has not made a reasonable effort to do so, and that the' complainant and child by reason thereof are unprovided for, and asking for the removal of the trust company and the appointment of another trustee, and for the payment of an allowance to the complainant pendente lite. Afterwards the bill was amended, asking the court to construe the will so as to authorize the trustee, if necessary to furnish a suitable support to the complainant and her daughter, to use the corpus of the estate for that purpose. The amended bill contains this language:

‘ ‘ That, if any power be lacking in the said trustee to furnish said maintenance and support under the restrictive clauses of said last will and testament, then and in that event that this honorable court may supply such power, and grant, authorize, empower, and order-said trustee to so manage, manipulate, sell, or mortgage the whole or such part of said estate as may be necessary to furnish an adequate, suitable, and reasonable support at all times hereafter to your oratrix and the said Helen Clay Mills.”

The defendant answered fully the allegations of the bill. The following statements taken from the answer contain its position in this proceeding: “This defendant shows that it is the plain intent and purpose of said will that the trust fund itself should be kept intact, and not used for the support and maintenance of said Helen Clay Mills and Maude Clay Mills; and this defendant shows that it would be recreant to the trust imposed upon it under said will, and would be liable to the parties in interest, if it should, as trustee under said will, expend anything for the maintenance of said Helen Clay Mills and Maude Clay Mills except the net income from said estate, in the precise manner and proportions as are provided in said will; that the trust company has used every possible effort to sell the real estate for the purpose of creating a fund from which an income can be derived for complainant and child, and that it will continue to use every possible effort in that direction; that it has in good faith carried out the terms of said will to the best of its ability, and that the bill of complaint in this cause is filed, not because this defendant has not done its duty as trustee under said will, but because the property of said estate consists almost entirely of unproductive real estate, which, owing to the depression in the times, it has been impossible to sell; that there is now a better feeling in the Grand Rapids real-estate market, and defendant hopes soon to make progress in converting the property of said estate into income-producing securities,” — and indicates its entire willingness and desire to make the estate productive as soon as it can be done without sacrificing it.

The court made a decree containing, among other provisions, the following:

• “1. That it is the true intent of the will that the estate should be so managed as to provide a comfortable support for complainant and her child (a) from the income, if possible; (6) from the corpus of the estate, if necessary.

“3. That the trustee sell at once the 30 acres in Paris township, and the Mills & Lacey stock, and apply the proceeds to the payments provided for by the decree, until the income from the estate shall be sufficient to support complainant and her child, whereupon the residue of the funds realized from said property, ‘if any, may be invested by the said trustee under the provisions of said will.’

“ 3. That the trustee pay complainant $360 for arrearage in her allowance during administration of the estate.

“4. That the trustee pay complainant, as guardian of her child, $100 per month from September 3,1898, to date of first payment, and monthly thereafter until the funds are exhausted, for the education and support of saic^child.”

It is insisted by defendant that this decree, instead of construing the will of Mr. Mills, has made a new and entirely different one for him than the one he made for himself. In that we think the defendant is right. The language used in the will is clear, definite, and certain. It is not in any sense ambiguous. It is very likely, if Mr. Mills could have looked into the future, he might have framed his will differently, but that is a question with which we. have nothing to do. In Fraser v. Chene, 2 Mich. 81, the court used the following language:

“ It is admitted to be a cardinal rule in the construction of wills that the intention of the testator is first to be ascertained from the words of the will, and when' ascertained it will govern; but to this admission there is an important qualification, namely, so far as that intention is consistent with the laws of the land, and no further. To stop short of this would be an infringement of that liberty of disposing of a man’s own property which is the most powerful incentive to honest industry, and is therefore essential to a free and commercial country; while, on the other hand, did indulgence to the testator’s intention go beyond this, every man would make a law for himself, and the metes and boundaries of property would be vague and indeterminable, which would end in total insecurity.”

In Johnson v. Warren, 74 Mich. 491 (42 N. W. 74), the court said: •

“Courts have no power to make new wills for testators, and disregard such lawful conditions as they may impose. * * * Courts have not ventured to substitute their own speculations for the clearly-expressed will of the testator, nor have they felt authorized to inquire curiously into the reasons of what is not ambiguous.”

In Wales v. Templeton, 83 Mich. 177 (47 N. W. 238), the court said that among the rules of construction applicable to wills are these:

“The plain intent of the testator, as evinced by the language of the will, must prevail. The intent of the testator must be gathered from the four corners of the instrument. ”

See, also, Byrne v. Hume, 84 Mich. 185 (47 N. W. 679); Stebbins v. Stebbins, 86 Mich. 474 (49 N. W. 294).

The probate court had the authority to make the order for the payment of the weekly allowance. It should have been paid. As it has not been, the trustee is directed to pay the balance due Mrs. Mills, found by the court below to be $360. The decree in all other respects is reversed. Defendant will recover costs of this court, to be paid out of the estate.

The other Justices concurred.


author: Montgomery, C. J. Per Curiam.

text:
    FOWLER v. BRACY.
    Land Contracts — Foreclosure — Homestead — Parties.
    The wife of a contract purchaser of land has no homestead right therein as against the seller, and is not, therefore, a necessary party to a suit to foreclose the lien of the contract. Amphlett v. Hibbard, 29 Mich. 298, followed; Haviland v. Chase, 116 Mich. 214, overruled.
    Appeal from Clare; Dodds, J.
    Submitted April 11, 1900.
    Decided May 18, 1900.
    Rehearing denied July 7, 1900.
    Petition by Arthur E. Fowler against Frank W. Bracy for a writ of assistance. From an order granting the writ as to part of the land only, petitioner appeals.
    Modified.

      Arthur J. Lacy and George P. Stone, for petitioner.

      George J. Cummins, for defendant.
   Montgomery, C. J.

The complainant, in April, 1895, entered into a contract to sell defendant certain lands in Clare county. The contract contained the usual stipulation giving the purchaser the right to possession, and the usual stipulation that in case of default the vendor might treat the purchaser as a tenant holding over without permission. Defendant and his wife entered into possession, and have since retained possession. A portion of the land constituted their homestead. Defendant defaulted in his payments, and complainant instituted this suit to foreclose the land contract. A decree was entered authorizing a sale to satisfy the unpaid portion of the purchase price. A sale was had, and complainant became the purchaser. Possession was demanded and refused, and thereupon a petition for a writ of assistance was filed. The defendant answered, setting up a homestead right, and claiming that, inasmuch as Mrs. Bracy was not made a party to the foreclosure proceeding, their homéstead right had not been cut off. The circuit judge refused to issue the writ as against the 40 acres occupied as a homestead, but granted it as to the remainder. Complainant appeals.

The sole question, therefore, is whether, in a suit in equity to foreclose the lien of a land contract, the wife of the contract purchaser is a necessary party, when, as in this case, a portion of the land which is the subject of the contract is a homestead. This question must be answered in the negative. Stating the rights of the contract purchaser most broadly, they cannot be greater than a purchaser under a deed of conveyance who gives back a purchase-money mortgage. Indeed, this is the relation which equity accords to the parties; that is to say, equity treats the purchaser as the holder of the title, subject to the lien of the vendor for the purchase price. The question involved has been determined by this court in the case of Amphlett v. Hibbard, 29 Mich. 298. This case has not been overruled or questioned, so far as we have been able to discover. See, also, Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. 185). True, it is held in numerous cases that the homestead right cannot be cut off by a proceeding to which the wife is not a party, but in this case, as in Amphlett v. Hibbard, the wife has no homestead interest as against the complainant’s claim. The protection of the homestead is protection against creditors. Patterson v. Patterson, 49 Mich. 177 (13 N. W. 504); Maatta v. Kippola, 102 Mich. 116, 118 (60 N. W. 300); Robinson v. Baker, 47 Mich. 619 (11 N. W. 410).

The order will be modified, and the full relief prayed will be granted.

The other Justices concurred.

ON APPLICATION FOR REHEARING.

Per Curiam.

A motion for a rehearing has been made in this case, and our attention directed to the case of Haviland v. Chase, 116 Mich. 214 (74 N. W. 477, 72 Am. St. Rep. 519). This case was not called to our attention by counsel in the main brief, and was overlooked by the court. On the hearing of Haviland v. Chase, the case of Amphlett v. Hibbard was not cited by counsel, and escaped our attention. There are two lines of cases outside this State. Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. 185), is in line with our decisions in Amphlett v. Hibbard, 29 Mich. 298, and in the present case; while Spalti v. Blumer, 56 Minn. 523 (58 N. W. 156), supports the holding in Haviland v. Chase. Inasmuch as the decision in Amphlett v. Hibbard established a rule of procedure which may have been acted upon in establishing property rights, we adhere to our former opinion, following the rule laid down in that case, and overrule Haviland v. Chase in so far as it is in conflict with this holding.


author: Montgomery, C. J.

text:
    SCUDDER v. ANDRUS.
    Settlement — Accounts—Consideration.
    An agreement whereby plaintiff, who, two years previously, had advanced a stated amount to defendant upon the understanding that she should share in the iirofits and losses of his business, was to be permitted to withdraw the entire fund so furnished, cannot be repudiated by defendant on the theory that, the business having sustained losses, his promise to repay the whole amount was without consideration and void, where, owing to overdrafts by defendant and the condition of the books and accounts, the fact, which afterwards appeared, that the business had been conducted at a loss, was not, at the time of the execution of such agreement, definitely ascertained.
    Error to Wayne; Lillibridge, J.
    Submitted April 12, 1900.
    Decided May 18, 1900.

      Assumpsit by Frances M. Scudder against Ward L. Andrus for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Corliss, Andrus & Leete (John D. Conely, of counsel), for appellant.

      Botven, Douglas & Whiting, for appellee.
   Montgomery, C. J.

In 1893 defendant was engaged in the wholesale grocery business in the city of Detroit. The capital invested in the business was $36,000, of which plaintiff had contributed $10,000 under an agreement that she should share in the profits and losses of the business, and with the further agreement that plaintiff might, on giving 60 days’ notice, withdraw the funds so furnished by her. It was stipulated that plaintiff should not have any voice in the business. This relation continued until May 1, 1895, the plaintiff’s husband being employed in the business as cashier. On May 1, 1895, or shortly thereafter, a new agreement under date of May 1st was entered into in the following terms:

“For and in consideration of the sum of ten thousand dollars ($10,000.00) furnished me by Frances M. Scudder, of Detroit, Mich., receipt of which is hereby acknowledged, for the purpose of carrying on a wholesale fruit and fancy grocery business at 53, 55, and 57 Jefferson avenue, as Ward L. Andrus & Co., of which firm I am sole partner, I hereby agree to pay said Frances M. Scudder or assigns, at the end of each year, ten thirty-fourths (10-34) of the net profits of said business. Said Frances M. Scudder may withdraw at any time the aforesaid funds so furnished by her by giving sixty days’ notice thereof. This agreement shall be in force five years (5) from May 1st, 1895, unless otherwise terminated. It is expressly understood that the said Frances M. Scudder shall not in any manner or in any way have any voice, direction, or control in the management of said firm on account of said funds so furnished ; and I hereby agree not to, personally or otherwise, sign or indorse any note, bond, or other obligation not pertaining to the business of said firm, or do any act which would place in jeopardy the money furnished by said Scudder.”

In February, 1897, plaintiff elected to withdraw her funds from the business. Within the 60 days fixed by the contract, defendant repaid $5,000, hut insisted, when demand was made for the balance, that plaintiff should bear her portion of the losses, while plaintiff insisted on her right to the $5,000 without abatement or deduction, and instituted this suit. Defendant thereupon filed a bill in chancery alleging that he was induced to sign the last agreement by the fraud of plaintiff’s agent, John Scudder; that the agreement should have stated that the amount contributed was the amount of the worth of plaintiff’s interest in the business on May 1, 1895; and that it should also have provided, as did the first agreement, that plaintiff should share in the losses as well as in the profits of the business. The bill filed by Mr. Andrus was dismissed on final hearing, and this decree was affirmed by this court on appeal. Andrus v. Scudder, 120 Mich. 502 (79 N. W. 794).

It was contended on the trial of this case that the chancery case was res judicata of the question as to whether plaintiff should participate in the losses, and also as to all questions raised in thi's case. The effect of the chancery decree was this: It determined that there was no fraud inducing the execution of the agreement of May 1, 1895, and, as a consequence, it was not competent for defendant to assert that plaintiff should bear a portion of the losses occurring after that date; but it was competent to introduce any defense which would have been open on this trial had no bill been filed. The defense attempted on this trial was to show that the recital of consideration was inaccurate in fact; that plaintiff, on May 1, 1895, contributed only the amount of her then present interest in the business, and that this amount, deducting losses then and subsequently ascertained, was but $7,424.55. The recital in the agreement of May 1, 1895, is not a recital of the amount advanced at the time, necessarily. Whatever the amount of Mrs. Scudder’s interest then was on the basis of the first agreement, the fact was that she had at one time $10,000, and this agreement of May 1, 1895, was a substitute for the agreement of 1893. It was strictly accurate and truthful to state that Mrs. Scudder had advanced $10,000, therefore.

The circuit judge admitted testimony of the actual value of the plaintiff’s interest, on the 1st of May, 1895, and charged the jury .that the plaintiff should recover no more than the unpaid portion* of that interest, unless the parties agreed to call her interest $10,000 at the time the agreement in question was made. This instruction was sufficiently favorable to defendant, unless, as is contended, there was a failure of consideration or the contract was usurious. John Scudder, who acted for the plaintiff in the transaction, testified that the defendant agreed to call plaintiff’s interest $10,000, and that the parties took into account.the good will of the business, and the fact that Andrus had, by drawing out of the business a consider-' able sum, crippled the business. Defendant contends that at this time the evidence shows conclusively that the business had sustained a loss, of which plaintiff’s portion was not less than $1,250, and that subsequent events have shown the loss to have been even more. There can be little doubt on this record that the loss sustained by the firm prior to May 1, 1895, as it noto appears, was considerably in excess of $5,000; but the important question is whether there was any such uncertainty as to the actual condition of the business as that the parties, by agreement, might fix upon the terms of settlement which they chose to make. The evidence discloses that on May 1st the books showed a profit of $2,196.92. True, it appears that there were included in the statement of assets suspense accounts, $5,076.28, which have since proved worthless in the main; but the parties had a right to fix a value upon them. Mr. Scudder testified that he considered these suspense accounts of some value, and defendant’s witness John L. Lewis testified that a suspense account had an element of hope in it, which a profit and loss account does not have. In view of the fact that the loss had not been definitely ascertained, and of the claim, that defendant had injured the business by his overdraft, can it be said that there was no uncertainty as to the rights of the respective parties which they might adjust? We think not. The jury have found that they did reach an agreement as to the amount of Mrs. Scudder’s interest. That fact determines the case. Watkins v. Ford, 69 Mich. 357 (37 N. W. 300).

We do not overlook the fact that Cochrane, who occupied a similar relation to the defendant, settled with him on the theory -that the firm had sustained losses up to May 1, 1895, and that Mr. Scudder took some part in the figuring ; but this fact did not prevent the two parties to this suit adopting a different basis by agreement.

No error was committed to the prejudice of defendant, and the judgment is affirmed.

The other Justices concurred.


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    SAYERS v. O’CONNOR.
    1. Tax Sales — Validity—-Payment of Tax.
    The fact that part of a tax was paid in due season to the collecting officer, who, on failure of the owner to pay the balance, returned to the latter the amount so paid, does not warrant the setting aside of a sale of the land for the amount of the tax.
    2. Same — Excessive Decree.
    An objection that the decree in a tax proceeding was excessive cannot be raised after confirmation of the sale.
    3. Same — Expenses of Sale.
    Under section 61 of the tax law of 1893, authorizing the inclusion in a tax decree of a charge of 70 cents against each description of land “for the cost of advertising and other expenses of sale,” such charge is properly included, notwithstanding the provision of section 65 that “the cost of advertising shall in no case exceed the sum of 40 cents for each description.”

      Appeal from Tuscola; Beach, J.
    Submitted January 31, 1900.
    Decided May 18, 1900.
    Bill by Sidney Sayers against William O’Connor and Roscoe D. Dix, auditor general, to review the decree in a tax proceeding. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      F. S. Wheat and Bacon & Palmer, for complainant.

      Quinn & Wixson and Thomas, Cummins & Nichols, for defendant O’Connor.
   Moore, J.

Mr. Gibbs was, prior to 1895, the owner of certain real estate. He placed upon it a mortgage, which was afterwards acquired by Mr. Sayers. The land was returned delinquent for the school tax assessed against it inl894. It was bid off to the State in 1896. Mr. O’Connor afterwards purchased the land from the State. This is a bill of review to set aside the decree ordering the sale of the land for the taxes, for various reasons set forth in the petition. The petition for a bill of review and the bill of review were dismissed. The petitioner has brought the case here by appeal. He abandons all of his reasons for appeal except two.

The record discloses Mr. Gibbs paid part of his school tax, but for some reason did not pay all of it, and' when it came time to either collect the tax or return the land for nonpayment of the tax, as the collector could not collect the balance unpaid, he returned, to Mr. Gibbs that portion of the school tax which had been paid, and returned the land for the full amount of the .school tax. It is urged upon the part of the petitioner that the payment made by Mr. Gibbs, notwithstanding the return of the money to him before the return of the land, amounted to a payment of the tax, and released the land from the lien of the tax so paid. It is conceded a part of the tax remained unpaid. A lien would certainly remain for the portion unpaid, for which a decree might be rendered for the'sale of the land. We do not think that, under the circumstances shown, any portion of the lien for the school tax was discharged. The tax collector is not obliged to take payment of a given tax in installments. The return of the amount received by the collector was satisfactory to the owner of the land. He knew that, as a result of his action, the land would be re- ■ turned for the full amount of the tax. But, conceding that the lien was in part discharged, the court still had jurisdiction to render a decree to enforce the lien not discharged. There was an opportunity then to fix the amount due. Whether that amount was excessive or not cannot now be litigated. Muirhead v. Sands, 111 Mich. 487 (69 N. W. 826); Spaulding v. O’Connor, 119 Mich. 45 (77 N. W. 323); Berkey v. Burchard, 119 Mich. 101 (77 N. W. 635); Wilkin v. Keith, 121 Mich. 66 (79 N. W. 887).

There was included in the amount decreed against the land 70 cents for the cost of advertising and other expenses. Counsel say that, as section 65 of the tax law of 1893 provides “the cost of such advertising shall in no case exceed the sum of forty cents for each description of land,” the amount included in the decree was 30 cents too large, and to that extent was invalid. This section fixes the compensation to be paid the proprietor of the newspaper for advertising the sale. It does not relate to the charge which shall be made against the land for costs and charges. Section 61 of the same act does relate to the amount of charges which may be included in the petition and decree, and provides that “he [the auditor general] shall include with and add to such total amount against each parcel seventy cents for the cost of advertising and other expenses of sale.” The circuit judge made no mistake in including this amount in the decree.

The decree is affirmed.

The other Justices concurred.


text:
    SAYERS v. AUDITOR GENERAL.
    Taxation — Setting Aside Deed — Mandamus—Res Judicata.
    A decree dismissing a bill to set aside a tax deed because of certain defects in the decree of sale, brought against the holder of such deed and the auditor general, is a bar to a subsequent application by complainant for a writ of mandamus to compel the auditor to cancel such deed because of other defects in the tax proceedings, — e. g., the failure of the court to remain in session for five days after the day fixed for hearing the auditor’s petition and before the entry of the decree.

      Mandamus by Sidney Sayers to compel Roscoe D. Dix, auditor general, to cancel a tax deed.
    Submitted January 31, 1900.
    Writ denied May 18, 1900.
    Relator, wbo has become the owner of the land in dispute by a mortgage-foreclosure sale, filed the petition in this case November 1, 1899, to compel the auditor general to annul and cancel a tax deed on the same land, issued to William O’Connor by the auditor general in 1896 for the taxes of 1894. In the order to show cause it was ordered that a certified copy of the petition, affidavits, and order be served upon William O’Connor, who is the real party in interest, and on whose behalf the brief is filed. Virtually he has been allowed to intervene and defend the suit. On May 3, 1898, relator filed a petition in the original case instituted by the auditor general to foreclose the tax liens, asking leave to file a bill of review. This was granted. The bill was filed against O’Connor and the auditor general. Both answered. The case was heard on pleadings and proofs taken in open court, and on September 7, 1898, decree was entered against the complainant dismissing the bill. The bill alleged ten reasons against the validity of the decree. Relator appealed his case to this court, and that decree is affirmed in an opinion filed herewith. Sayers v. O'Connor, ante, 356 (83 N. W. 1044). The reason now urged by relator for the certificate of error annulling the deed is that the circuit court in chancery was not in session for five days subsequent to the day fixed for the hearing and before the decree was rendered. This reason was not one of the ten alleged in the bill in equity. Respondent contends that the chancery suit is' a bar to this proceeding.

      Bacon & Yerkes, for relator.

      Horace M. Oren, Attorney General (Thomas, Cummins & Nichols, of counsel), for respondent.
   Grant, J.

(after stating the facts). The object of the two suits is the same, namely, the cancellation of the deed. It is the general rule that a party cannot split his cause of action, and bring suits in detail. This case is a splitting of reasons, rather than of a cause of action. The parties are the same; the cause of action, viz., an invalid deed, is the same; the object sought for, viz., the cancellation of the deed, is the same. It cannot be denied that relator might have included in his chancery suit the same reason that he now urges in this proceeding. There should bp an end of litigation, and when a party proceeds in chancery to procure the annulment of' a deed he must allege and show his reasons. He must set forth all the reasons he has against the validity of the deed. He cannot allege one reason, have tha.t determined against him, and then bring suit for another reason. See Cornett v. Cornett, 122 Mich. 685 (81 N. W. 920).

The cases cited by counsel for relator do not apply. In Conley v. Auditor General, 123 Mich. 83 (81 N. W. 963), it was insisted that the case of Conley v. McMillan, 120 Mich. 694 (79 N. W. 909), was a bar to the proceeding. That case did not involve proceedings subsequent to the decree. Neither does this. The deed in Conley v. Auditor General was held void because of illegality in the sale itself after decree. It is not sought in this proceeding to annul the deed because of proceedings subsequent to the sale, but of a defect before the decree was made. The situation, then, is this: The decree in. the proceedings taken by the auditor general is held valid in the case handed down herewith, and, if we sustain the relator’s position in this case, we declare it invalid. Is it consistent to enter a decree in chancery holding the deed valid, and at the same time enter a judgment in a proceeding at law declaring it void? People v. State Treasurer, 24 Mich. 468, is not in point. The parties were not the same. The case pending in another court was not claimed to operate as a bar. Speaking of the bill that had been filed in the United States circuit court, this court said that its “purpose was so clearly in violation of legal principles that we cannot hesitate to regard it as one over which the court where it is pending will not assume jurisdiction to grant relief.” In Joslin v. Millspaugh, 27 Mich. 517, the question arose under the foreclosure statute. It was held that, while the statute prohibited proceedings at law for the recovery of the debt while the foreclosure suit was pending, the question permitting such proceedings was to be determined by the chanoery court, and not in the suit at law. In People v. Wayne Circuit Judge, 27 Mich. 406 (15 Am. Rep. 195), many cases are cited, and the question fully discussed as to the practice where more than one suit is pending. The question there was whether an adverse decision in an action in rem against a vessel in an admiralty court was a bar to a suit in personam in a State court to recover for the same services sought to be enforced by the proceeding in rem. Goodrich v. White, 39 Mich. 489, is another case arising under the foreclosure statute. The above are the cases cited to sustain relator’s contention.

In State v. Patterson, 11 Neb. 266 (9 N. W. 82), the application was for the writ of mandamus to compel a county treasurer to execute certain tax deeds. To this application answers were filed setting up the pendency of actions in other courts to have the action in the tax proceedings declared void. The court say:

“ It appears that tax deeds have already been issued to the relator for the lands in controversy, and that the actions referred to in the answers were instituted for the purpose of setting aside said deeds and the proceedings upon which they are based. This being the case, this court will not entertain jurisdiction. To do so would be oppressive. The cases are pending in a- court having jurisdiction of the subject-matter and the parties.”

Where one has instituted quo warranto proceedings to test his title to an office, mandamus will not lie to induct him into office during the pendency of an appeal in the quo warranto proceeding. Hannon v. Commissioners of Halifax, 89 N. C. 123.

In Hardcastle v. Railroad Co., 32 Md. 32, a suit in equity was pending for an injunction, discovery, and general relief for the identical causes of complaint contained in the petition for a mandamus. The court say:

‘ ‘ That it [the writ of mandamus] will not be granted if the party has another adequate and specific remedy is fully supported by authority. It is not, however, a sufficient answer to an application for a mandamus that the party might have redress in a court of_ equity; for, when the writ is refused because there is another specific remedy, that remedy must be at law. Tapp. Mand. (m) 22, and note it; Mos. Mand. 18; People v. Mayor, etc., of New York, 10 Wend. 393; Proprietors of St. Luke’s Church v. Slack, 7 Cush. 226. But the rule is otherwise if the party asking for the writ has, before that time, gone into a court of equity, and there instituted proceedings under which all the relief may be obtained that is asked for in an application for a mandamus.”

The same rule was held in People v. Wiant, 48 Ill. 263; People v. Common Council of Chicago, 53 Ill. 424; People v. Warfield, 20 Ill. 159; Swartz v. Large, 47 Kan. 304 (27 Pac. 993). There may be an exception to this rule in extraordinary cases. People v. Salomon, 51 Ill. 37, 55.

The writ is denied.

The other Justices concurred.


text:
    MERRYMAN v. HALL.
    Negligence — Boiler Explosion — Cause oe Accident — Question eor Jury.
    Where, in an action for injuries caused by the explosion of a boiler, the evidence showed that the fireman in charge of the boiler negligently left it unattended, under a large and increasing pressure of steam, for 30 or 40 minutes before the accident, it was a proper question for the jury whether the negligence of the fireman was the cause of the explosion.
    Error to St. Clair; Vance, J.
    Submitted April 12, 1900.
    Decided May 18, 1900.
    Case by Frederick I. Merryman against Edmund Hall for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Avery Bros. & Walsh (O. A. Hovey, of counsel), for appellant.

      Oscar M. Springer (Timothy JE. Tarsney, of counsel), for appellee.
   Moore, J.

The plaintiff sued the defendant to recover for injuries- received by him, caused by the explosion of the boiler upon a dredge owned by defendant. The cir. cuit judge directed a verdict for the defendant. The case is brought here by writ of error.

The defendant owned a dredge with which he was performing a contract he had with the government to do dredging in Black river. The plaintiff was an inspector looking after the work on the part of the government. He had nothing to do with the management of the dredge. He went aboard the dredge on the morning of May 25th. After the dredge had been in operation for a little time, some of the machinery gave trouble, making it necessary to stop the work for a little time. It is the claim of the plaintiff that the work was heavy, requiring the operation of powerful machinery, and the use of a high pressure of steam in the boiler to operate the machinery. His claim is that, when the machinery was stopped, no steps were taken to check the fire under the boiler, but the fireman went to the forward part of the boat, 40 or 50 feet away from the place of his duties, and remained away 30 to 40 minutes, and that, as a result of the neglect of the persons in charge of the boiler, the steam was raised in the boiler beyond its capacity to resist the pressure, and that the boiler exploded, throwing the plaintiff 25 or 30 feet into the river, and injuring him severely. The plaintiff offered testimony tending to support his theory that the explosion was caused by the negligence of the persons in charge of the boiler. No proof was offered upon the part of the defendant.

Plaintiff requested the court to charge the jury, in substance :

“1. That, under the circumstances, the bursting of the boiler vras prima facie evidence of negligence.

“2. That if you should find that the dredge was being operated under an ordinary working pressure of steam, and with an ordinary working fire in the furnace, and that the furnace doors were closed and the back damper or backboard closed, and that the machinery was thereupon stopped for repairs, and that the fireman in charge of the boiler thereupon went to the forward part of the dredge, and left the boiler without checking the draughts, whereby the steam pressure would be likely to dangerously increase, and if you find that he so remained away from his place Of duty for 15 or 20 minutes, and that, while he was so absent from Ms post, the steam pressure did so increase as to blow out the crown sheet of said boiler and injure the plaintiff, then such acts of the fireman would constitute, negligence, for which the defendant would be liable.”

The court declined to give either of these requests, and stated to the jury that plaintiff had failed to establish by proof, with reasonable certainty, the negligence which was the proximate cause of the injury, and directed a verdict for the defendant.

The counsel for the plaintiff do not insist in their brief that under the ruling in the case of Voight v. Car Co., 112 Mich. 504 (70 N. W. 1103), they were entitled to have the first request given, but they do say the testimony offered by them was of such a character that the jury might very properly draw from it that the negligence of the persons in charge of the boiler caused the injury, and whether such an inference should be drawn or not was a question for the jury. Notwithstanding the diligence and ability of the counsel employed in the case upon both sides, they have cited us to but few authorities that aid in the solution of the questions involved. The case most in point is the case of Davis v. Railway Co., 58 Wis. 646 (17 N. W. 406, 15 Am. & Eng. R. Cas. 424, 46 Am. Rep. 667). In that case it was claimed thé absence of the persons in charge of the boiler caused the explosion. The court, in disposing of the case, used the following language :

“The evidence in the case at bar tends to prove that the persons in charge of the boiler and pile-driver were culpably negligent in leaving it unattended for more than half an hour in the condition the evidence tends to show it was. Hayward, the defendant’s witness, and who was competent to give an opinion on the subject, testified that, if the boiler was left with such a fire in the fire-box as the plaintiff claimed the evidence showed there was, an improper amount of steam would be generated in the boiler. He firrther said: ‘ It is not safe and proper to leave a boiler and engine unattended, with a large fire in the fire-box. It is very unsafe and improper to do it, with a large fire.’ It was certainly for the jury, and not for the court, to say, upon the whole evidence, whether this act of negligence was the cause of the explosion; and it was also for the jury to say whether it was a want of ordinary care on the part of those in charge to leave so dangerous an engine unattended in the immediate vicinity of a place where they knew people would be passing and repassing. This court cannot say, as a matter of law, that the explosion was the result of causes which' were unforeseen, and that such explosion would have occurred at the same time and in the same way, and produce the same injury, if the men in charge had remained there during the half hour they absented themselves. These are questions for the jury. We do not say that the plaintiff could recover in this action if the jury should find as a fact that the explosion of the boiler was the result of a defect in the iron of which it was originally made, or because of defects arising out of its use, and which were unknown to the persons in charge at the time of the accident, and were not discoverable by the ordinary inspection given to it. An explosion occurring from such causes might be said to be one of the risks incident to the business, and that all such risks the licensee assumes when he avails himself of the privilege granted by the company; but if they find that the explosion occurred by reason of the negligence of those in charge in permitting the steam to be raised to an unsafe pressure in the boiler, and that the explosion occurred from that cause, then we think the clear'weight of authority is in favor of the plaintiff’s right to recover. Upon the first theory the want of attendance at the time would not be the cause of the explosion, and on the second theory it would be, or might well be found to be. ”

It has repeatedly been held by this court, in negligence cases, that it is not the province of the court to pass upon the weight of the evidence, and the effect to be given to it, but that those are questions for the jury; that it is only where there is not sufficient legal evidence, if it is believed, to establish a case for the plaintiff, that the court would be justified in directing a verdict for the defendant. See Carver v. Plank-Road Co., 61 Mich. 584 (28 N. W. 721), where there is a full collation of the authorities. We think, under the proofs, the plaintiff was entitled to have his case, under proper instructions, submitted to the jury.

Judgment is reversed, and new trial ordered.

The other Justices concurred.