author: Moore, J.

text:
    NEELY v. FLUMERFELT.
    Partnership — Payment oe Individual Debt with Firm Assets —Appeal.
    In an action to recover for goods alleged to have been furnished to defendant by plaintiffs as copartners, in which defendant denied the existence of the partnership, and claimed that the goods were received from one of the plaintiffs in payment of a debt due from him, but further contended that, if such partnership did exist, defendant was ignorant of the fact, and that the other plaintiff knew of and assented to the arrangement under which the goods were furnished, a judgment for defendant, based upon a verdict rendered under full and fair instructions as to the law applicable to the case, was affirmed.
    Error to Oakland; Smith, J.
    Submitted February 3, 1898.
    Decided March 15, 1898.

      Assumpsit by John Neely and Thomas Neely against George Flumerfelt for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Davis & Bromley, for appellants.

      A. & S. H. Perry, for appellee.
   Moore, J.

Plaintiffs sued defendant to recover pay for flour and feed, valued at $23.61, furnished to him between May 2, 1896, and January 5, 1897. Judgment was rendered in favor of defendant in justice’s court, and upon appeal to the circuit court was also rendered in his favor. Plaintiffs bring the case here by writ of error.

It is plaintiffs’ claim that April 7, 1896, they formed a partnership to do a milling business at Rochester, Mich., and that during the existence of the partnership the flour and feed were furnished to defendant. It was the claim of defendant that there was in fact no partnership during the time these items were furnished, but that the business was that of John Neely, who had prior to that date, and for several years, conducted the business, with the exception of a short time in 1895, when Mr. Curry and John Neely were partners.

The defendant, in 1894, left at the mill, while John Neely was doing business alone, about 300 bushels of wheat, with the agreement that, at any time Mr. Flumerfelt wanted to sell it, he should be paid within four cents of the Detroit price. One hundred bushels of the wheat were sold and paid for. The balance was never sold, and it is the claim of the defendant that it was also agreed he could draw flour and feed for himself and man, on the wheat, and that all the flour and feed were furnished him under the agreement, and that he had no knowledge that Thomas Neely claimed to be a partner in the business until after all the flour and feed were furnished him. It is also claimed that if, between themselves, Thomas and John were partners, Thomas was a secret partner, and the partnership was wrongfully concealed from the defendant. It is also claimed that Thomas Neely knew of the agreement existing between John Neely and the defendant about the furnishing of the flour and feed, and assented thereto.

A good many errors are assigned, — as to the admission of testimony, to the refusal of the trial court to give certain of plaintiffs’ requests to charge, and to the charge as given. There was no error in relation to the admission of testimony. The questions of law applicable to the case were fairly, and at length, given to the jury. Dob v. Halsey, 8 Am. Dec. 293 (16 Johns. 34), and note; Locke v. Lewis, 124 Mass. 1 (26 Am. Rep. 631); Rogers v. Batchelor, 12 Pet. 231. A careful examination of the record and briefs, and the cases cited therein, satisfies us that none of the errors are well taken. We do not deem it necessary to discuss them in detail.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    DOWLING v. DOWLING.
    1. Husband and Wipe — Competency as Witnesses.
    In a suit by a wife against her husband, the wife is competent, to testify, under 3 How. Stat. § 7546, without his consent, in relation to a business transaction between them which is the subject-matter of the suit.
    2. Same — Earnings op Wipe.
    It is competent for a husband and wife to agree that the wife’s earnings shall be her individual property.
    Error t'o Wayne; McMahon, J., presiding.
    Submitted February 3, 1898.
    Decided March 15, 1898.

      Assumpsit by Caroline C. Dowling against Charles F. Dowling for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Grove Campbell, for appellee.
   Montgomery, J.

Plaintiff and defendant are husband and wife. The plaintiff brought this action to recover the sum of $350 and interest, and gave testimony tending to show that she loaned the amount to defendant shortly after her marriage to him. Defendant admits that he received of her $263, but denies having received more, and also denies that the money was a loan, but testifies that the money was placed in a common fund with money of defendant, which was used - by him in the meat business. The defendant also claims a set-off. It appears that, after engaging for a time in the meat business, that undertaking proved a failure, and the plaintiff and defendant engaged to work at farm work, and later worked in the Illinois Insane Asylum for wages; that out of these wages a sum ($300 as defendant claims; $200 as plaintiff concedes) was loaned to plaintiff’s brother-in-law, one Gustave Schufte, and ' that it is now held by him (Schufte) payable to plaintiff. Plaintiff testifies that, when the two engaged at service, it was understood between them that she should receive her earnings, and that the money loaned to Schufte was her money.

The record contains a large number of assignments of error, but we find it wholly unnecessary to discuss any considerable number of them. It is settled that the wife may testify in relation to business transactions with her husband. Indeed, the statute (3 How. Stat. § 7546) scarcely needs interpretation.' But, if it does, it has been construed in Hunt v. Eaton, 55 Mich. 362. It is also settled that the husband may agree that the earnings of the wife may be her individual property. Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201).

The learned circuit judge, in his charge, covered fairly every aspect of the case. He charged, in substance, that, if there was a contract between the parties to consider the advance made by plaintiff to defendant a loan, it should be so treated, and that this might be gathered from the situation and circumstances and what the parties said; but if, on the other hand, the plaintiff simply contributed the money to assist defendant, without any understanding that it should be repaid, or with the understanding that she went into the business taking the risks and consequences which might ensue, and the money was lost in the business, she could not recover. As to plaintiff’s earnings, the court charged that ordinarily the husband is entitled to the wife’s earnings, but that it is competent for the parties to agree that the wife should have her earnings, and that, “if the husband so consented, the earnings would belong to her, but, if he did not consent to it, he has a right to her earnings, — her earnings are his property.” The court left it for the jury to say whether the money loaned to Schufte belonged to plaintiff or defendant, and charged that, if the money belonged to defendant, and was loaned to Schufte in such a way that defendant cannot get it, and that it is payable to plaintiff, it constitutes a set-off, and that the jury would have a right to reduce plaintiff’s claim by the amount. These directions fairly present the issue.

We discover no error in the record, and the judgment will be affirmed.

The other Justices concurred.


text:
    GOODMAN v. FELCHER.
    Statute of Frauds — Promise to Pay Another’s Debt — Husband and Wife.
    A wile is not liable upon a parol promise to pay for supplies previously furnished to a boat owned by her husband, upon which she held a mortgage, although she knew, at the time of making such promise, that the claim for such supplies was a lien upon the boat, and although the creditor thereafter took no steps to enforce a lien, where there was no express agreement that the lien should be released, and the creditor did not know of the wife’s interest in the boat.
    Error to Saginaw; Snow, J.
    Submitted February 3, 1898.
    Decided March 15, 1898.

      Assumpsit by William E. Goodman and John F. Winkler against Rebecca L. Felcher for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Trask & Smith, for appellant.

      Ohauncey H. Gage, for appellees.
   Moore, J.

The plaintiffs sued defendant in justice’s court, declaring on all the common counts in assumpsit, and specially for goods sold and delivered. Plaintiffs recovered a judgment for $31.26. ■ The case was appealed to the circuit court, where, after a jury trial, judgment was rendered in favor of plaintiffs for the same amount, with costs. Defendant brings the case here by writ of error.

In August, 1895, the plaintiffs sold to the steamer Periwinkle a bill of coal amounting to $28.77. it seems to be conceded that the owner of the steamer at this time was Mr. Felcher, the husband of the defendant. The plaintiffs’ claim that defendant is liable is based upon the testimony of their collector, Mr. Hay, and the testimony of Mr. Goodman. Mr. Hay testified:

“After the coal was delivered, I went to the house of Mrs. Felcher for the pay, and saw Mrs. Felcher there.
“Q. What statement did she make to you regarding it ?
“A. The first time I went there she said Mr. Felcher was not there; he had been away. I think that was the day, to the best of my knowledge and belief. Then the next time that I called she said not to be bothering all the time, she was good for it, and she would see the bill satisfied ; and I went down and told Mr. Goodman what she said.
“Q. What did you then do in reference to making out a bill to her ?
“A. Why, simply called upon her for the money. She had promised to pay it.
UQ. What did she say in regard to it?
“A. She said she had not got the money; she was expecting to get some, but did not get it. And that" was her excuse from time to time. I cannot say how many times I called to get it; a great many times, I guess. She acknowledged she would pay it all the time until the last time, after the house was burned there, and I went, there, and told her, I says, ‘ Mrs. Felcher, you had better take and settle this thing up;’ and I says: ‘ You had better be wise about it. You promised to pay it. ’ And she says, ‘I didn’t promise anything of the kind.’
‘ ‘ Q. She stated to you what in regard to the claim being against the Periwinkle or Felcher ?
“A. She said not to bother Mr. Felcher at all; she would see it paid.
“ Q. As I understand you, she promised to pay it several different times?
“A. Yes, sir.
- “(Cross-examination.) Q. The first time you went to see her, what did she say to you, and what did you say to her ?
“A. I asked Mrs. Felcher if Mr. Felcher was in, and she said ‘No,’ that he wasn’t there, and asked me what my business was, and I gave her the bill, and she said Mr. Felcher was away. So I didn’t want to say too much that time. That is all that occurred the first time, as near as I can recollect. I did not show her the same bill we have here, but took her a dozen bills. They stated the amount, but can’t say any of them gave the items. They were all made out to the steamer Periwinkle. They stated the amount, and she knew about the coal.
Q. The second time you went there, tell us what she said.
‘A. She said not to come over there bothering all the time; she would see the bill paid herself.
Q. Is that about all she said ?
“A. That is about all that was necessary.
Q. Can you recollect any other conversation you had with her ?
“A. No, not that I recollect. I might have passed the time of day, or talked a little the way collectors generally do. I can’t say.
“Q. You have told us substantially all that was said?
“A. Well, all that I can recollect.
Q. That is, not to keep bothering all the time, and she would see it was paid ?
“A. Yes, that’s the idea exactly.”

William E. Goodman testified as follows:

“I am one of the plaintiffs, and am acquainted with the defendant. I remember some coal that was delivered to the steamer Periwinkle. I remember when Mr. Hay returned from defendant’s and told me with regard to his conversation with her, and her agreement to pay the bill. I afterwards saw Mrs. Felcher.
“Q. What did she say to you in regard to coal bill?
“A. She came into our office, and wanted me to take some hay. She said she did not want me to take the pay for the coal out of the hay, because she wanted to use that money. She said she would pay the bill.
“Q. Upon being informed that Mrs. Felcher would pay the bill, what did you do in reference to putting in a claim against the steamer Periwinkle, so far as you were concerned ?
“A. We made no claim after that against the boat. "We paid no further attention to the boat at. all, expecting that Mrs. Felcher would pay the bill. We took- no further action to collect the claim against the steamer Periwinkle after she promised to pay it.
“Q. State whether the firm of Goodman & Winkler, after the time Mr. Hay returned, and informed you of the interview he had there with Mrs. Felcher, looked to the steamer Periwinkle for your pay for the coal ?
“A. No, sir. .We never, after this, looked to the steamer Periwinkle for our pay.
“Q. Why not? State why you didn’t. (Counsel for defendant objected to giving his reason - unless such reason was communicated to defendant, but the court overruled the objection,' and counsel for defendant duly excepted.)
“A. From that time on we looked to Mrs. Felcher.. We did not look to the boat any more. We relied on Mrs. Felcher’s promise. I cannot recall that Mrs. Felcher ever spoke to me but once about the bill, and that was when she wanted me to buy the hay, in 1896. Mr. Hay is our collector, and is authorized to make arrangements in regard to our bills.
“(Cross-examination.) Q. After your collector, Mr. Hay, returned, and said Mrs. Felcher had said not to bother her any more, that she would see that the bill was paid, you mean after that you looked to her ?
“A. Yes, sir.
“Q. And the only other time that you have any personal knowledge of was, you say, at the time she tried to sell you some hay, and said she would pay the bill, but she didn’t want it taken out of the hay ?
“A. Yes, sir. I think George P. Felcher, or Stewart, ordered the coal.” ,

Mrs. Felcher denied that she made any promise to pay the bill, but admitted that she knew that a claim for coal could be enforced as a lien against the boat. It was shown on the trial that, at the time the bill was made, the firm of A. W. Wright & Co. had a first mortgage on the boat, and the defendant had a second mortgage.

The trial judge, among other things, charged the jury as follows:

“If you find from the evidence in this case that the defendant had a mortgage on this boat in question at the time she had the conversation with the plaintiffs or their agent, and that she knew that the claim that the plaintiffs presented at her house for payment, inquiring for her husband, was in the nature of a lien upon the boat upon which she had a mortgage, and that she promised to pay the debt, believing at the time, from her knowledge of the manner in which boats are conducted, and the manner in which liens are obtained for supplies furnished boats, —knowing at the time, I say, and believing what she did there, that the lien that was upon that boat for the supplies was released, and would be released from that time on, and that she alone would be held for the payment of that debt, then the plaintiffs would be entitled to recover. But, on the other hand, if what she said to the plaintiffs or their agent, at the time she said it, had no reference, in her own mind, to the lien that was created upon this boat, nor no thought of its being .discharged upon her promise to pay the debt, then she would not be liable, because it would not be an original promise, as there would be no benefit accruing to her, or that might accrue to her, for the promise to pay the debt. The defendant disputes this. The defense claim that they never at any time promised to pay this debt, neither to the agent nor the plaintiffs; absolutely and emphatically deny it. Now, before you can, in any circumstances in the case, render a verdict against the defendant, you must believe from'the preponderance of evidence in the case that the defendant did make that promise under the circumstances which I have explained to you, understanding at the time and believing that the lien was released, and that she alone would be held thereafter for the debt. You must also find that the plaintiffs did release the lien, and that it was released immediately upon her promise to pay the debt; not at some subsequent time, but at the time she made the promise.”

This portion of the charge, it is said, is error, for the reason that there is no testimony to base it upon. A careful perusal of the record does not disclose that, at the time of the conversation with Mr. Hay, either he or the plaintiffs knew of the existence of defendant’s mortgage. While the record does show that, after Mr. Hay disclosed to the plaintiffs his conversation with defendant, they looked to her, and’ not to the boat, for their pay, it does not disclose that, because of her agreement to pay the debt, it was agreed that the lien upon the boat should be relinquished. So far as the record discloses, the plaintiffs were in a position to assert their claim against the owner of the boat or their lien against the boat, and, if they had done so, Mrs. Felcher could not have claimed that they had agreed not to assert it. When the most favorable construction possible for the plaintiffs is put upon the evidence, it amounts, at most, to an agreement upon the part of Mrs. Felcher to pay the debt of another. To make such an agreement valid it must be in writing. 2 How. Stat. § 6185; Waldo v. Simonson, 18 Mich. 345; Stewart v. Jerome, 71 Mich. 201 (15 Am. St. Rep. 252), and the cases therein cited. The court should have directed a verdict in favor of defendant.

Judgment is reversed, with costs of both courts.

The other Justices concurred.


author: Hooker, J.

text:
    S. K. MARTIN LUMBER CO. v. MENOMINEE CIRCUIT JUDGE.
    1. Attachment — Motion to Quash.

    A trial of the issue in attachment proceedings cannot be avoided by a motion to quash based upon the merits, even if it be accompanied by a stipulation of the facts.
    2. Same — Dissolution—Review—Remedy.

      Certiorari, and not mandamus, is the proper remedy to review a ruling of the circuit judge upon an application to dissolve a writ of attachment under 2 How. Stat. § 8026.

      Mandamus by tbe S. K. Martin Lumber Company to compel John W. Stone, circuit judge of Menominee county, to quash a writ of attachment.
    Submitted February 15, 1898.
    Writ denied March 15, 1898.

      Sawyer & Waite, for relator.

      L. D. Eastman (Eastman & Martineau, of counsel), for respondent.
   Hooker, J.

An action was brought by the city of Menominee against the relator by writ of attachment issued upon .filing the usual affidavit. The defendant, who is the relator, appeared specially, and moved to dismiss the proceedings, filing a stipulation of fact in the case. The grounds relied upon are:

“1. That no debt is owing by the defendant to the plaintiff in the attachment suit.
“2. That, if any debt exists against any one, it is not subject to recovery through attachment.
“3. That the statute does not authorize a suit to be brought for the collection of a tax against any one but the person actually assessed as appears by the roll, the roll being the evidence of the debt, and being conclusive.
‘ 4. That a distinction is made between the rights of a treasurer, proceeding under his tax warrant for the collection of a tax, and the rights of the municipality, proceeding under the special remedy by suit, wherein strict construction of the statute is required. ”

The relator appears to have two objects in view: First, to obtain an adjudication that the city has no legal claim against him, without a trial of the question; second, to quash the proceedings, and compel the institution of new ones to recover such claim, if it be not held invalid. These things he proposes to do on an application to quash the proceedings, supplemented by a mandamus. His most far-rgaching proposition is that he will show upon this motion that the city had no right to bring this action, and therefore that the court has no jurisdiction, by making proof, before declaration filed, of the cause of action sued upon; and, second, matters in defense, viz., that the assessment does not appear upon the roll to have been made against the defendant. In other words, he will try the merits upon a motion to ascertain whether the court has jurisdiction, and, if defeated, will review the question upon mandamus. If it appear that this tax sued for was not assessed against the defendant’s name upon the roll, all proceedings are said to be void, because suit was authorized by law only against the person whose name actually appeared. Thus the jurisdiction depends on a matter outside of the record, and the proceedings might be shown to be void in a direct proceeding or upon collateral attack at any time by the production of the assessment roll, showing the absence of the defendant’s name. The statute (Act No. 206, Pub. Acts 1893, § 47) should not be thus construed. If the alleged defense is a good one, it would be effective upon a trial of the merits, which is the only place it can be made. We think that trials cannot be avoided by a motion to quash based upon the merits, even if it be accompanied by uncontradicted proof, or even a stipulation of fact. If such a procedure were permitted, it would permit the practice of taking the opinion of this court upon questions of law in advance of the trial at nisi prius, thus practically making this the court of original jurisdiction, instead of a court for the correction of errors. Upon the face of the papers — i. e., affidavit and writ and return — the court has jurisdiction. If, upon filing a declaration, enough should appear therefrom to show the facts set up in the stipulation, a demurrer would test the question; if not, a plea in abatement would do so; but it cannot be tried on a motion to quash involving the merits.

The other question in the case should be tested upon a motion to dissolve the attachment under the statute, whereby the court has the power to require the entry of appearance by the defendant, though the attachment be dissolved. 2 How. Stat. § 8026. In such case certiorari, and not mandamus, is the proper remedy.

The writ of mandamus prayed for should be denied.

The other Justices concurred.


author: Long, J.

text:
    BAXTER v. LATIMER.
    1. Offices — 'Vaganov—What Constitutes.

      An office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which appertain to it; and, conversely, it is vacant, in the eye of the law, whenever it is unoccupied by a legally-qualified incumbent who has a lawful right to continue therein until the happening of some future event.
    2. Militia — Field Officers — Expiration of Term — Holding Over.
    Act No. 63, Pub. Acts 1895, relative to the Michigan National Guard, provides that the field and line officers, except when elected to fill a vacancy, shall be' commissioned for a term of three years from the date of their election, and until their successors are commissioned. Held, that no vacancy exists upon the expiration of a regular term, but the incumbent holds over pending the issuance of a commission to his successor.

      3. Same — Election.
    1 How. Stat. § 901, relative to the organization of the Michigan National Guard, provides that the regimental field officers may be elected by the company officers. Act No. 198, .Pub Acts 1893, empowers the “field and company officers,” by a majority vote, to fill vacancies in the field offices. Authority is nowhere conferred upon the field officers to participate, in a general election. Reid, that an election for a regimental field officer for a full term, participated in by certain field officers whose votes were required to make a majority for the person declared elected, was void, and that a new election was properly ordered by the commander-in-chief.

      Mandamus by Charles S. Baxter to compel William G. Latimer, colonel of the 4th infantry of the Michigan National Guard, to vacate an order calling for an election of field officers. Edwin M. Irish, adjutant general, Henry B. Lothrop, and others intervened.
    Submitted February 15, 1898.
    Writ denied March 15, 1898.

      John Atkinson, for relator.

      Edwin M. Irish, in pro. per.

      Edwin E. Conely and Orla B. Taylor, for other interveners.
   Long, J.

The relator asks a mandamus to compel the respondent to vacate an order calling an election to be held by the officers of the 4th regiment to elect field officers, and to recognize the relator as major of said regiment. The petition sets out, substantially, that at a regular meeting of the officers of said regiment held October 5, 1897, for the purpose of electing field officers, there were present 27 officers, being all the officers of said regiment duly commissioned; that George L. Winckler was present, and claimed to be a second lieutenant, under a commission dated September 21, 1897, and signed by the governor of this State; that the colonel commanding said regiment and presiding at the meeting referred the matter of allowing said Winckler to vote to a committee, which reported that, at the time said commission was issued, the governor was absent from the State. The petition further states that in fact the governor was absent from the State from September 13 to October 15, 1897, and was all that time en route from Detroit, this State, to Venezuela and back, or in Venezuela^ and that on the 21st day of September he was not executing, or claiming to execute, the office of governor, but that the same had devolved upon, and was being executed by, the lieutenant governor; that at said meeting it was regularly moved and supported and carried that the commission of said Winckler be not recognized, and in accordance with said motion the chairman refused to allow him to vote; that a ballot was ordered, and 14 votes were cast for relator as major; that 13 of the officers present answered to their names, but refused to vote; and that relator, having received all the votes cast, and the votes of a majority of all the officers present, was duly declared elected. The petition then recites that the relator thereupon filed his acceptance as required by law, and that a return was made of said election to the adjutant general of the State, but that-the adjutant general, having received a protest from the 13 officers refusing to vote, and from Winckler, against the action thus taken, and alleging that Winckler was entitled to vote at said election, ordered the election to be set aside and a new election held; that the colonel commanding said regiment appealed from the decision of the adjutant general to the governor, who has since that time decided that on the date of the commission to Winckler he was absent from the State, and that said commission was invalid; that, notwithstanding that fact, the election has been called by the adjutant general. Upon the filing of this petition an order to show cause was entered in this court, and all proceedings stayed.

The answer of Col. Latimer admits the facts stated in the petition. The adjutant general and all the parties interested were thereupon permitted to appear in the cause, and be represented by counsel.

The adjutant general makes a return to the order, in which is set out all the official records in his office,' together with certain affidavits, from which it appears that Harry F. Chipman, prior to September 8,1897, was acting as second lieutenant of Company D, 4th regiment, under a regular election and commission, and that on September 8, 1897, he resigned his said office, forwarding his resignation direct to the adjutant general, and also through military headquarters, the same being indorsed “Approved” by the regimental and brigade commanders. It appeared also that Lieut. Chipman had been elected sheriff of Wayne county. This resignation was duly accepted by the adjutant general, as was and long had been the custom of that office, without reference to the governor. Thereupon the adjutant general ordered an election to fill the vacancy in the office of second lieutenant of Company D aforesaid. An election was held by that company, and Lieut. Winclder was duly elected, and on September 17th an official return of that election was made to the adjutant general. A showing is also made by affidavit that a report of this election was also made through the proper military channels, and a certificate was filed by the inspector general, showing that Lieut. Winckler had a full and fair examination, and that he was qualified for the office, with a recommendation that a commission issue. Upon the filing of the oath of office by Lieut. Winckler, a commission was issued to him by the adjutant general. This commission was issued September 21, 1897, and bears the genuine signature of Gov. Pingree, was countersigned by the secretary of state and by the adjutant general, and bore the great seal of the State. It appears, however, that the commission so issued was upon a blank which had theretofore, and before he left the State, been signed by Gov. Pingree, and deposited in the office of the adjutant general. It is claimed by the adjutant general that there has long been an established custom for each governor to leave with the adjutant general blank commissions, ready to issue, and duly signed by the then governor, and that in accordance with this custom he issued the commission to Lieut. Winckler during' the absence of the governor from the State.

It is further shown by the return of the adjutant general that, before the election of Lieut. Winckler as second lieutenant, he had been for many years an enlisted soldier in the company, and at the time of his election was first sergeant of said company; that on September 22d, when the commission was delivered to him, he was by his captain relieved from duty as first sergeant, and placed on duty as second lieutenant, and since that time has performed the duties of second lieutenant in that company, and has ever since been recognized as second lieutenant of that company by the officers and members of the company. It is claimed he was therefore entitled to vote at the election. The adjutant general further returns that after he received the protest from the 13 officers of the regiment, and from Lieut. Winckler, he was asked by Col. Latimer to refer the matter to the governor, and that upon such reference the governor, on December 13, 1897, ordered that a new commission issue to Lieut. Winckler, and that a new election be had; that, upon the receipt of this order, a new election was ordered and duly held, but that the officers failed to elect. It appears now that under the call for a new election there is a deadlock in the election; 14 voting for one set of officers, and 14 for another. In further answer to the petition, the adjutant general returns that he had no official notice of the governor’s absence from the State, and no notice whatever except newspaper rumor; that the lieutenant governor never assumed command of the National Guard, and never in any way communicated with or gave instructions to the adjutant general of that fact, or in any way modified his standing authority to act.

Upon this state of facts, it is claimed by counsel for relator that relator was elected, whether Lieut. Winckler was entitled to vote or not; that upon the assumption that he was entitled to vote, and that his vote ought to have been received, there were 15 of the 28 taking part in the election, as the other 13 refused to take part in it; that 15 would be a quorum, and the majority of the 15 would be sufficient to elect; that, as the record stands, it is clear that Lieut. Winckler’s vote, if received, could in no way have affected the result; that its rejection was not prejudicial, and does not therefore affect the result; that, assuming that Lieut. Winckler was not entitled to vote, then there were only 27 officers in the regiment, and the 14 who voted for the relator constituted a quorum, and a clear majority.

We are met at the outset with the proposition from respondent’s counsel that no legal election was held, as, under the statutes of this State, the regimental field officers had no right to vote at that election. Section 901, 1 How. Stat., provides:

“Companies may elect their own officers in the manner to be prescribed in general regulations; regimental field officers may be elected by the company officers according to general regulations.” .

Section 927 provides:

“On the occurrence of any vacancy in office after the first organization of any company, the members thereof may proceed to elect some person to fill such vacancy.”

Section 928 provides:

“The manner, time, and place of holding and conducting all company, elections shall be regulated by the bylaws of such company. All vacancies in the field officers of a regiment shall be filled by a majority vote of the commissioned officers of said regiment, at a time not exceeding sixty days from the date such vacancy occurs, to be fixed by the officer commanding such regiment. Ten days’ notice of the time and place of holding such election shall be given in writing to each company officer in said regiment.”

By Act No. 198, Pub. Acts 1893, section 928, 1 How. Stat., was amended so as to read, “ All vacancies in the field officers of a regiment shall be filled by a majority vote of the field and company officers of said regiment present at a time to be fixed by the officer commanding such regiment;” the 10-days notice in such case to be given, etc.

By Act No. 63, Pub. Acts 1895, it is provided:

“The field and line officers, except when elected to fill a vacancy, shall be commissioned for a term of three years from the date of their election, and until their successors are commissioned.”

It will be noticed that section 901 has not, in terms, been amended by these acts. It is apparent that, at the first organization of companies into a regiment, there would be none but company officers to elect the field officers of the regiment. It is also apparent that section 901 is the only section providing for the election of the field officers of a regiment, except in cases of vacancies. Section 928 provides for the election of regimental field officers in cases of vacancies. The modes of election, and the officers who may participate in the election, are different, under the two sections» Under section 901, the regimental field officers are to be elected by the company officers. Under section 928, in cases of vacancies the regimental field officers are to be elected, under Act No. 198, Pub. Acts 1893, by the “field and company officers of said regiment.” By the act of 1895, regimental field officers, except when elected to fill a vacancy, are commissioned for three years from date of election, and until their successors are commissioned. Can it be said that there were vacancies in the field officers of this regiment, within the meaning of these statutes, at the time the election was called and held ? It was evidently the intent of the legislature, by the act of 1895, that no vacancies should occur by lapse of time of service, but that the officers commissioned for three years should hold over until their successors were commissioned. In State v. Howe, 25 Ohio St. 588 (18 Am. Rep. 321), it was held that where an officer appointed by the governor, by and with the advice and consent of the senate, is authorized to hold his office for a term of three years, and until his successor is appointed and qualified, and no appointment of a successor is made by the regular appointing power at the expiration of his term of three years, the office does not become vacant, but the incumbent holds over as a de jure officer until his successor is duly appointed and qualified. Mcllvaine, C. J., said in that case:

“That the framers of the constitution, in providing for filling vacancies in office, did not regard an office as vacant when an incumbent might lawfully hold over his definite term until a successor was elected or appointed and qualified, is manifest from other provisions in the instrument. By section 4, art. 10, the duration of the term of township officers is fixed at one year from the Monday next succeeding their election, and until their successors are qualified. It would hardly be contended that, under this provision, a township office becomes vacant at the end of the year, from the mere fact that no successor to the incumbent has qualified. Again, the following provisions are found in the schedule: Section 7 provided that all county and township officers and justices of the peace in office on the 1st of September, 1851 (when the constitution took effect), should continue in office until their terms expired, respectively; section '8 provided for the filling of vacancies which might occur after that date, and until officers were elected or appointed and qualified under the constitution; and section 10 provided that all officers should continue in office until their successors should be chosen and qualified. Under these provisions in the schedule, it cannot be doubted that all officers in office on the day named continued in office de jure until their successors were chosen under the new constitution, unless removed by death or otherwise, although their fixed and definite terms expired before their successors were chosen; or, in other words, by virtue of section 10, the expiration of terms did not create vacancies to be filled under the provisions of section 8.”

In State v. Johns, 3 Or. 537, it was said:

“Vacancy in an office means the want of an incumbent at the time. * * * Vacancy in an office is one thing, and term is another. An office may be vacant and filled many times during a term of four years. ”

An office.is not vacant so long as it is supplied, in the manner provided by the Constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which appertain to it; and, conversely, it is vacant, in the eye of the law, whenever it is unoccupied by a legally-qualified incumbent who has a lawful right to continue therein until the happening of some future event. People, ex rel. Baird, v. Tilton, 37 Cal. 614; State, ex rel. Tredway, v. Lusk, 18 Mo. 333; Com., ex rel. Broom, v. Hanley, 9 Pa. St. 513. The foregoing is the rule in this State, as is well illustrated in People, ex rel. Andrews, v. Lord, 9 Mich. 227; Lawrence v. Hanley, 84 Mich. 399; Conely v. Detroit Common Council, 93 Mich. 446. We must presume that the legislature used the word “ vacancy ” in the stat. ute in the sense in which the courts had theretofore interpreted it.

In the present case there were no vacancies in the field officers of the regiment. It appears that the dolonel, lieutenant colonel, senior major, and junior major were in office, either for the original term of three years, or under the legal extension thereof by reason of their holding over until their successors were elected. Therefore the election must be held under the provisions of section 901, and in which election only the company officers can participate. Section 928 has no reference to a general election, but to an election only to fill a vacancy, and it is at such an election only that the regimental field officers have the right to vote. It may have been an oversight in the legislature in not providing that regimental field officers, after the first election, may participate in all elections, whether general or to fill vacancies, but the legislature has not so provided by these statutes. However, we do not question the policy of the legislature in providing that regimental field officers shall be elected by company officers, except in cases of vacancies. It is a matter resting entirely with that body. It appears to be conceded by the parties hereto that the regimental field officers did take part in the election under which relator claims to have been elected. It also appears from the return that the colonel and lieutenant colonel were among those voting for relator and the other field officers claiming to have been elected, and without their votes those claiming to have been elected would not have received a majority-vote of those present at the election. We think for these reasons the election was void, and the governor could and did very properly call another election. We see no objection to the governor’s making the call through the regimental officer, but, when the company officers assemble, they, and they alone, constitute the electoral body. Lieut. Winckler now having received a new commission, no question can be raised as to his right to vote.

In this view of the case, it is unnecessary to discuss the other questions raised. The writ will be denied. No costs will be allowed.

The other Justices concurred.


text:
    WALLERSTEIN v. BOARD OF CONTROL OF STATE HOUSE OF CORRECTION AND REFORMATORY.

    Prisons — Powers op Warden — Convict Labor.
    Section 34 of Act No. 118, Pub. Acts 1893, makes it the duty of the boards of control of the various prisons in the State to meet once in six months in joint session to determine what lines of labor shall be pursued in each prison. Other sections of the act require the wardens to keep prisoners constantly employed at hard labor “ beneficial to the State,” and provide that “all the fiscal transactions and dealings on account of each prison shall be conducted by and in the name of the warden.” Held, that, where the joint prison board has taken no action in the way of determining the lines of employment to be pursued in a prison, the warden thereof may, with the approval of the board of control, make a valid contract for the employment of convicts, for a term of years, along any line consistent with the provisions of the act.

      Mandamus by Alfred Wallerstein to compel the board of control of the state house of correction and reformatory at Ionia to approve a bond.
    Submitted March 1, 1898.
    Writ granted March 15, 1898.

      John Atkinson {Cahill & Ostrander, of counsel), for relator.

      Fred A. Maynard, Attorney General {Alfred Lucking, of counsel), for respondent.

       Rehearing denied May 34, 1898.

   Montgomery, J.

On the 17th of December, 1897, the petitioner entered into a contract with the warden of the state house of correction, which was approved by the board. This contract provided for the .employment of 300 inmates of the house of correction, “ or so many thereof as are not assigned to any contract now in force, or are not assigned to do the general work of the prison,” in the business of the manufacture of shirts, collars, and cuffs. This contract was for the term of 10 years, and the relator was required to furnish a bond for the faithful performance of the same in the sum of $10,000. The relator presented a bond to the board, which was pronounced satisfactory as to terms and sureties, but the board refused to approve the same because it had been directed by a joint meeting of the prison boards to take no further action in regard to the contract, and for no other reason.

Prior to 1891, the several prisons of the State had been each controlled by its own board. In 1891 this was changed, and provision made for the control of all the penal and reformatory institutions by a single board. In 1893, by Act No. 118, a separate board was provided for each of the several prisons. The first section of this act provides that persons sentenced to these several prisons shall be confined and employed at hard labor. By paragraph 4 of section 9 of the act it is made the duty of the warden to use all proper means to furnish employment to the prisoners most beneficial to the State and best suited to their several capacities. Section 38 provides:

“All convicts other than such as are confined in solitude for misconduct in the prison shall, as far as practicable, be kept constantly employed at hard labor at an average of not less than ten hours a day, Sundays excepted, unless incapable of laboring by reason of sickness or other infirmity.”

By section 2 of the act the government and control of the house of correction is vested in a board of control consisting of three members. In section 12 it is provided

“All the fiscal transactions and dealings on account of each prison shall be conducted by and in the name of the warden thereof.”

It is clear that, under these provisions, the warden, with the approval of the hoard, would have the authority to make a contract for the employment of prisoners, unless that authority is restricted by other provisions of the act. It is contended by the attorney general, who appears on behalf of the joint boards, that such restriction is found in section 34, which reads:

“It shall be the duty of the prison boards to meet once in six months in joint session to determine what lines of productive labor shall be pursued in each prison, and in so determining said boards shall select diversified lines of industry, with reference to interfering as little as possible with the same lines of industry carried on by citizens of this State.”

It does not appear that the boards have met in joint session and determined as to what lines of industry are to be adopted in each of the several prisons. Meetings have been held from time to time, contracts made by the several boards have been approved or disapproved, but no action restrictive of the powers of the several boards, other than this, has been taken. It is not contended that section 34 confers upon the joint boards the power to contract, but it is contended that action of tbe joint boards is a condition precedent to the execution of any contract for the employment of the convicts. The question is not free from difficulty. We would have little hesitancy in saying that, if the determination contemplated by section 34 had been made, future contracts by the several boards must have been made with reference to and within the lines of this determination. The question is, Was it the intention that, before any such determination, the power to make a contract should exist in no one ? We think not. Such a construction is inconsistent with the policy marked out by the other provisions of the act, and with the authority of the respondent to control the affairs of the prison.

The writ must issue as prayed.

The other Justices concurred.


text:
    HENDERSON v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    1. Trial — Instructions—Evidence.
    An instruction in an action for personal injuries that “ if the jury believe the plaintiff’s side of the case and the plaintiff’s witnesses, taking them in sides, plaintiff has made out a case,” is prejudicial to defendant, where many of the facts testified to by plaintiff’s witnesses might be true, and yet no liability exist.
    2. Injury to Infant — Contributory Negligence.
    A boy who has sufficient intelligence to appreciate the danger of running in front of a street car, and has in mind the necessity of taking precautions, is guilty of contributory negligence in running in front of a car, even though he did not fully possess the intelligence of an adult.

      8. Same.
    Where, in an action by a father for damages resulting to him from the negligent running down of his eight-year-old son by a street car, the father testified that the boy was perfectly competent to take care of himself upon the street, and the boy himself showed by his testimony that he possessed sufficient intelligence to appreciate the danger in crossing the tracks, it was error to submit the question of his capacity in this respect to the jury.
    4. Negligence — Instructions.
    It is error for the court to submit to the jury an action for personal injuries under instructions which permit them to find the defendant negligent upon grounds which are negatived by the undisputed evidence.
    Error to Wayne; Donovan, J.
    Submitted October 12, 1897.
    Decided March 22, 1898.
    Case by Henry Henderson against the Detroit Citizens’ Street-Railway Company to recover' for expenses incurred in caring for his son, alleged to have been injured through defendant’s negligence. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Brennan, Donnelly & Van De Mark and Bernard B. Belling, for appellant.

      John Galloway (Edwin Henderson, of counsel), for appellee.
   Montgomery, J.

Plaintiff’s son, Malcolm Henderson, was injured by contact with one of the cars of defendant. The.plaintiff brings this action to recover for expenses incurred in nursing and caring for his son, and for medical attendance, medicines, etc. A verdict was recovered of $203.50, upon which judgment was entered, and defendant brings error.

The accident occurred on Michigan avenue, near its intersection with Humboldt avenue. At this place the defendant has double tracks. The car which struck plaintiff’s son was going west. The testimony is conflicting as to whether it met an east-bound car at this point. Some of the testimony tended to show that the boy ran or walked past the rear of the east-bound car, and was immediately struck by the west-bound car; and other of the testimony tended to show that he went behind a coal wagon standing on the track, and came in collision with the west-bound car. The boy testified that he looked for the cars to see if they were coming, for the reason that he knew, if they did strike him, he would get hurt; that he went behind one car, and was struck by the other; that there was a coa] wagon right on the track; that he just saw it, and looked that way'to see if the car was coming; that he turned right behind the wagon, and did not run behind a car at all, and ran into the fender of the car that was going west; that, just as soon as he went behind the wagon, he was struck by the car; that he did not get across the track, and ran right into the fender; that he did not see the fender out from behind the wagon, because he did not look for that; that he looked to see if the car was coming. Again, on redirect examination he testified that he did see the car which did not strike him; that he ran right behind the coal wagon, and saw only the one car which did not strike him.

Frank Almas, a witness for the plaintiff, testified that he stood near the scene of the accident; that the boy was from 30 to 50 feet from him when he started to cross the street; that, when the boy started to cross the street, he' was running, and ran up to the time he was struck; that he saw the car the first time when it was about 25 feet from Humboldt avenue, and thought, when he saw the boy running across the street, he was bound to be struck by the car when he saw the car coming so fast; that there was nothing to prevent the boy seeing the car if he had looked; that he could see it as soon as witness could; that the boy ran right into the car, or the car ran into him, witness could not say which, but, after the accident, he was lying between the double tracks; that he might have run against the car. Maud Wilson, a witness for the plaintiff, testified that she saw the car strike the boy, and throw him to the west; that she did not hear any gozzg Tinging; that the boy was walkizzg across the street. On cross-exanzizzatiozi she testified that the boy passed behizzd a car going down town, maybe three or four feet, maybe not so far, and he was struck by the other car as he got past the car going down towzi; that the car which struck him was not any distance away whezz he appeared upon the track; that she thinks the side of the sign struck him. Edward Siebert testified that the boy was struck by the end -of the car, but that he could not say whether the fender struck him or not; that he struck the front part of the car, and bouzzced off, and fell on the ground. . On cross-examination he testified that the boy did not completely get on the track of the west-bound car whezz he ivas struck by it; that he could not say whether he walked into the car or zzot; that, izz his judgment, the car razi into him; that he was zzot over two feet on the track when he was struck, but that he was struck izz pretty zzear the corner of the car. Joseph Gomersall, a witziess for the plaintiff, testified that he was drivizzg a coal wagozz west on Michigan avenue; that he was izz front of the blackszzzith shop on the east side of Humboldt avezzue when the accidezzt happened; that he saw no other coal wagozz around there; that he came onto Michigan avenue from Fifteenth street, azzd was travelizzg at a pretty good rate of speed; that he had just reached the east crossing of Michigazz avezzue azzd Huzzzboldt, and the zvest-bound car went dowzz, azzd up came the eastbound ; that he saw the boy leave the sidewalk, and the west-bouzzd car came by, azzd he could zzot see the car strike the boy, because he was on the wrong side for that. On cross-examination this witness testified that the east-hound car was already half a block away when the boy stepped upozz the track ozz which it was traveling; that it was a good half block away; that the witness could not say when the east and west bound cars passed each other, as they were, both behind him when they passed.

The above, with other testimony showing that the car in question was traveling at an unusual rate of speed, and tending to show that the gong was not sounded, comprised the testimony offered by the plaintiff bearing on the res gestae. The plaintiff also testified that he had frequently cautioned his son always to be careful, and look both ways, before he attempted to cross the street, and that the boy must have comprehended what he said, and that, in his judgment, he was perfectly competent to take care of himself on the street. Defendant offered testimony showing a somewhat different state of facts, but we deem it unnecessary to quote the testimony at any length, as the questions raised depend upon the case as made by plaintiff’s testimony.

The defendant preferred the following requests:

“1. Under the pleadings and proofs, the plaintiff cannot recover.
“2. It is enth’ely immaterial in this case at what rate of speed the car was going, for the undisputed testimony of all the witnesses is that, after the boy approached the car, it was impossible to have stopped it before the collision occurred.”
“5. If you find that Malcolm Henderson, the boy who was hurt, had been warned repeatedly by his father of the danger of crossing the car tracks on Michigan avenue without looking to see whether a street car was coming, and that the boy himself appreciated the danger of going upon the tracks of the defendant, then your verdict must be for the defendant, and be no cause of action.”
“8. If you find that Malcolm Henderson ran from behind a coal wagon or behind a car directly into the fender or side of defendant’s car, your vérdict must be for the defendant. ”

The court refused to give the first, second, and last of these requests, and modified the fifth by adding:

“That is, if he was a grown person under the circumstances, or.if he had the intelligence of a grown person fully.”

Assignments of error are based upon' the refusal of the defendant’s several requests, the modification of the fifth request, and the instructions of the court given on its own motion.

Error is assigned on that portion of the general charge which reads: “If you believe the plaintiff’s side of the case and the plaintiff’s witnesses, taking them in sides now, then the plaintiff has made out a case.” This method of submitting a case, always dangerous, was obviously damaging to the defendant in this case, for, in my view of the case, many of the facts testified to by plaintiff’s witnesses might be true, and yet no liability exist.

We also think the modification of the fifth request was error. The circuit judge evidently had in his mind the case of Baker v. Railroad Co., 68 Mich. 90, which case certainly goes to the extreme limit in permitting recovery by a child somewhat younger than the son of the plaintiff in the present case; blit the court in that case held that the question of contributory negligence was for the jury for the reason that, under the facts of that case, it was for the jury to determine whether the lad had such judgment and such comprehension as to enable him to appreciate the danger, and subject him to the consequences of negligence if he failed to use his reason and senses in an effort to avoid it. But the instruction of the learned circuit judge in 'this case relieved the jury of the duty of passing on the question of whether plaintiff’s son had such appreciation of the dangér as to render him subject to the consequences for a failure to use his reason and senses in an effort to avoid it. The modification of the request in question was by adding: “That is, if he was a grown person under the circumstances, or if he had the intelligence of a grown person fully. ” It is hardly necessary to say that this test is too liberal. If the boy had sufficient intelligence to appreciate the danger, and had in mind the necessity of taking precautions, it is not necessary that he should have had the intelligence of an adult fully.

Another instruction is objected to, which was as follows :

“This negligence must consist of either failing to give the proper warning of the approach of the car, or of failure to stop the car after the perilous position of the son of the plaintiff was discovered by the motorman, if he could with reasonable care discover it. That is qualified a little, and this I leave to the jury: Whether it was possible, by diligent endeavors of the motorman, to stop the car after the boy came from behind the coal wagon, or whatever he did after he came upon the track, or we will say within reach. ”

We think, upon the case made by the plaintiff, this instruction was misleading. There was no evidence which would have justified the jury in finding, or which tended in the slightest degree to show, that the position of this boy on the track was discovered in time to avoid the injury. On the contrary, it appears that the boy never was upon the track; that he came in contact with the car on reaching the track; and his own theory was that he passed as far forward as he went, before being struck, from behind an obstacle which obstructed his vision, and would equally have obstructed the vision of the motorman, and the evidence shows that he was at the time on a run.

It is evident that this verdict cannot stand, but the more doubtful question is presented as to whether the first request of defendant should have been given. In my opinion, upon this record, it should have been. See Ecliff v. Railway Co., 64 Mich. 196. The plaintiff himself testified that this boy had intelligence enough to appreciate the danger. He placed the boy on the stand, and he so testified. The evidence clearly shows that there was nothing except this wagon and the east-bound car to obstruct the vision. Witnesses for the plaintiff state that, if the boy had looked in the direction of the car, he could have seen it. It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from, .collision with an ordinary-wagon just as surely as from running into this car, and, from the testimony of the lad himself, he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not ?

Error is assigned upon certain language employed by plaintiff’s counsel upon the argument, but, as the case is reversed upon other grounds, it is not necessary to consider the objection at length. We find in the record language which ought not to have been employed, but, as it is not likely to be repeated, it is not necessary to quote 'it.

Judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    MUELLER v. MARSH.

    Estates of Decedents — Judgment for Claimant — After-Discovered Receipt — Review in Equity.
    A court of equity is not justified, in setting aside a judgment against an estate merely because of the subsequent discovery of claimant’s receipt running to the deceased, where the payment of certain moneys was admitted by the claimant, who took judgment for the balance only, and it is not clear but that the receipt refers to such admitted payments.
    Cross-appeals from Wayne; Carpenter, J.
    Submitted January 6, 1898.
    Decided March 22, 1898.
    Bill by Jennet F. Mueller, administratrix of the estate of John C. Mueller, deceased, against Robert J. Marsh, to set aside a judgment against the estate. From the decree rendered, both parties appeal.
    Reversed and bill dismissed.

      Henry M. Duffield (Divie B. Duffield, of counsel), for complainant.

      Elliott 6r. Stevenson, for defendant.

       Rehearing denied June 7, 1898.

   Moore, J.

Complainant filed a bill as administratrix of her deceased husband, in which she stated that her husband, in his lifetime, entered into an agreement with defendant, as follows:

“ The undersigned acknowledges herewith that in the mortgage given him this day by E. F. Riopelle, amounting to thirty-two hundred dollars, Robert J. Marsh has an interest in the same to the amount of six hundred dollars, bearing interest at the rate of six and one-half per cent, per annum, which will be paid to him at the expiration of the mortgage three years hence, if not sooner realized, provided that the mortgage brings par value, or to such proportions as it may realize. The execution of this acknowledgment is depending on the filing and executing his (Marsh’s) bond, given to me this day, in regard to his interest of the firm of Mc.rsh & Riopelle, and for which is this present acknowledgment an equivalent. This acknowledgment not transferable.
“Detroit, December 3, 1885.
“ J. C. Mueller.”
“An agreement entered into this day between John C. Mueller, at Detroit, and Robert J. Marsh, of same place, to witness: John C. Mueller acknowledges that the mortgage given him today by E. F. Riopelle on lots A and B, Riopelle farm, amounting to three thousand and two hundred dollars, belongs one-half of it to Robert J. Marsh, and that half to be paid to him as soon as realized on it, with the consent of both Mueller and Marsh. Robert J. Marsh acknowledges that John C. Mueller has an equal share with him in the interest he (R. J. Marsh)' holds in the firm of Marsh & Riopelle, and also one-half in the soda apparatus stored at present in the house of said Marsh, 101 Catherine street, Detroit. Said Robert J. Marsh promises herewith to account to said J. C. Mueller for all his interest as above stated, and give him his equal share as soon as he realizes on it.
‘ ‘ In testimony, witness our hand and seal this 3d day of December, 1885.
“John C. Mueller. [L. S.)
“Robert J. Marsh. [L. S.]”
“The undersigned acknowledges herewith-that I owe one-half of my interest in the firm of Marsh & Riopelle, at Detroit, to John C. Mueller, of the same place; that, in consideration for this interest, John C. Mueller has deeded to me a share in the mortgage given to him by E. F. Riopelle of thirty-two hundred dollars, on which I have received one thousand dollars in cash, and a further interest of six hundred dollars when realized upon, or mortgage expires. And I herewith promise faithfully to account to said Mueller all the profits, valuables, and stock I have and may receive as my share in the said firm of Marsh & Riopelle, and turn over one-half of the same to said Mueller. I further acknowledge that J. C. Mueller has an equal interest with me in the soda apparatus and counter stored at present on my premises, and that I will turn over to him one-half of the proceeds when sold with his consent. This presents not transferable.
“Detroit, December 3, 1885.
“Robert J. Marsh.”

Complainant further stated that her husband died in April, 1889; that defendant presented a claim before the commissioners, which was disallowed, but that, upon appeal to the circuit' court, a judgment was recovered for $838.33, which judgment was affirmed in the Supreme Court (96 Mich. 488), with costs; that this judgment was made up of $600 and interest; that since the trial complainant has found written evidence showing that at least half of that amount had been paid. She alleged that on the 1st of December, 1885, her husband and said Marsh entered into partnership; that said firm-was dissolved, and settled its affairs, but at what date she was not informed; that Marsh never accounted to her husband, and that upon a proper accounting there would be due her, as administratrix, not less than $500. She further alleged that defendant was insolvent, and prayed that he be required to answer under oath as to what sums of money he had received on the claim which had been put into judgment, and to state fully an account of the partnership, and that he be enjoined from attempting to collect his judgment.

The defendant answered under oath, denying that he had received any payment- whatever from Mr. Mueller which ought to have been applied upon the $000, and denying that there was any profit in the partnership business, and giving his version of its condition.

The case was tried before the circuit judge, who set aside the judgment which had been entered in the law case, and decreed that the claim of Mr. Marsh should be allowed at $504.96. From this decree both parties appeal. No proof was offered in relation to the condition of the partnership for which an accounting was asked, and no reference was made to it in the decree.

The question is raised whether a court in chancery has the power to vacate a judgment at law under the state of facts set up in the bill of complaint. We do not deem it necessary to discuss that phase of the case. It is well understood that before a chancery court will interfere with a judgment at law it must be made very clearly to appear that an injustice has been done. A reference to the case of Marsh v. Mueller, 96 Mich. 488, will aid in understanding what is involved in this proceeding. It was the claim of Mr. Marsh in that proceeding, as well as in this, that he had a one-half interest — that is, $1,600 —in the $3,200 mortgage which had been given by Riopelle. He admitted then, and admits now, that Mr. Mueller paid him $1,000 during his lifetime, but claimed then, and claims now, that Mr. Mueller did not pay him the $600 to which he was entitled when the final $1,200 of the mortgage was collected. It is the contention of complainant that her husband paid this $600 to Mr. Marsh before the death of Mr. Mueller. Mrs. Mueller was sworn, and testified to the search she had made for any papers or receipts passing between Mr. Marsh and her husband, and to the first knowledge she- had of the receipt which was offered in evidence, and to having been in the store of her husband a short time before his death, when he was writing in his check-book, and the witness asked him what he was doing; that he made no reply, but Mr. Marsh did; that Mr. Marsh said, “ The doctor is very good in helping me out of a difficulty with a loan.” The son was sworn to his fruitless search among his father’s papers, and to a talk with Mr. Marsh on the street, when ‘ he said something to me about some papers being in the safe at the store, I believe, and he wanted to get them. He said they were his papers. I did not look for the papers at that time, but afterwards saw all the papers in the safe, and I did not notice any belonging to him.” Col. Duffield testified to the finding of the receipt after the trial and judgment in the circuit court, when looking up another claim. Mr. Williams, a bookkeeper at the American Exchange National Bank, testified that Dr. Mueller had an account at their bank, and that in the account there was an item on December 10, 1885, for $300; on September ICth, for $300; on September 9, 1886, for $1,010; on September 8th, $1,228.46. On the cross-examination he said it was an active account, and these were selected from a large number of debits. They would average a check a day of various amounts. He did not know to whom the checks were payable; they were returned when the books were written up. Mr. Bowman, the cashier'of the Detroit Savings Bank, testified:

“ With reference to this $3,200 mortgage, I remember something about this transaction between Dr. Mueller and the bank. According to this memorandum, it was some seven or eight years ago, and I have not seen it since. On the 12th of December, 1885, the bank made a loan to Mr. Mueller of $2,000 on security of a mortgage of $3,200, which, if I remember right, was made by Edward E. Kiopelle. That loan ran along until September 8, 1886, when the bank took over the moi’tgage, deducting the amount due on Mr. Mueller’s note, and paid him the difference. That w'as the 8th of September; 1886, and. the difference which he got at that time was $1,228.46. The mortgage was subsequently paid.”

The receipt was offered in evidence, and reads as follows:

“Received, December 10, 1885, of John C. 'Mueller, three hundred dollars, advance to me on the produce of the loan of two thousand dollars, made this day on the Riopelle mortgage. R. J. Marsh.”

Mr. Marsh was called as a witness by the complainant, and it is claimed that his testimony, when confronted by the receipt, was equivocal, and that a fair inference from it is that he had been paid by Mr. Mueller in his lifetime. This case was tried in May, 1897. While there was a reference made to a writing in the bill of complaint, no copy of the receipt was set úp, and it is not shown that Mr. Marsh ever saw it until it was shown him when he was a witness. It is not strange that he could not remember all the details surrounding the transaction. His testimony is of the most positive character that the money mentioned in the receipt was part of the $1,000 paid to him by Mr. Mueller, and that he had never been paid any part of the $600 to which he was entitled when the last $1,3>00 of the mortgage should be collected. We have recited the substance of all the testimony, and there is nothing in any of it which contradicts the testimony of Mr. Marsh, unless it is to be found in the statement contained in the paper signed by him, dated December 3d, in which he says, “In consideration for this interest, John C. Mueller has deeded to me a share in the mortgage given to him by E. E. Riopelle of thirty-two hundred dollars, on which I have received one thousand dollars in cash, and a further interest of six hundred dollars when realized upon, or mortgage expires,” taken in connection with the receipt for $300. We think, when these two papers are read in connection with the testimony of the cashier of the bank, instead of contradicting Mr. Marsh, they strongly corroborate his testimony. It is shown by the testimony of the cashier that on December 12, 1885, the bank made a loan to Mr. Mueller of $2,000 on the security of this mortgage, and that this loan ran along until September 8, 1886, when it was paid by the bank’s taking over the mortgage,

and paying the difference, which amounted to $1,228.46. The $300 receipt recites that it was “advanced to me on the produce of the loan of two thousand dollars, made this day on the Riopelle mortgage.” There was but one loan of $2,000. It had undoubtedly been negotiated, but it was not completed by the bank’s paying the money over until two days later. For some reason, before the money was obtained from the bank, $300 was paid to Mr. Marsh as an advance to him on the $2,000 loan, which was consummated two days later between the bank and Mr. Mueller. We cannot see why this is not a much more reasonable explanation of the transaction than to say that the receipt does not refer to the money received from the $2,000 loan, but does refer to the money realized on a sale of the mortgage made nearly a year later, especially in view of the fact that Mr. Marsh was not entitled, under his contract with Mr. Mueller, to this $600, until the mortgage was realized upon, or the mortgage expired.

The complainant has not made so clear a case as to justify setting aside any part of the judgment.. The decree is reversed, and complainant’s bill is dismissed, with costs of both courts.

The other Justices concurred.


text:
    BLACK v. SIMON.
    1. Evidence — Filing op Bill op Sale.
    The fact that the vendee in a bill of sale placed the same on file in the office of the township clerk may be considered on the question whether it was given as security or as an absolute sale. Wessels v. Beeman, 87 Mich. 481, followed.
    2. Same — Inventory—Hearsay.
    An inventory based in part on information received by the one making it from other persons is inadmissible in evidence.
    Error to Cheboygan; Adams, J.
    Submitted January 26, 1898.
    Decided March 22, 1898.
    Trespass de bonis by Robert Black and others against Samuel Simon and another. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      Frost & Sprague, for appellants.

      J. L. Stoddard, for appellees.
   Montgomery, J.

Plaintiffs compose a copartnership known as the “Maltby Lumber Company.” In November, 1895, Rorabeck & Moore gave a bill of sale of seven horses, which were used by them in lumbering operations, to the Guelph Patent Cask Company. Subsequently they gave another bill of sale covering the balance of their camp equipage. After the date of these bills of sale, the last company executed bills of sale to its superintendent, Fred Start. About the 1st of February, 1896, an agreement was made between Start and the Maltby Lumber Company, by which Start sold to the Maltby Lumber Company the property covered by the bills of sale, on the agreement that the Maltby Lumber Company-would pay the men engaged in the lumbering operations, and would turn over to Start or the cask company, for which he was acting, certain logs, amounting in value to $812. This purchase by the Maltby Lumber Company was made in the first instance with the full assent of-Rorabeck & Moore. There is a conflict in the testimony as to whether the Maltby Lumber Company understood, at the time, that the bills of sale were absolute or were given as security for advances, but, as to the assent of Rorabeck & Moore to the transaction, there is no- dispute whatever, although there is testimony that after Maltby took charge of the camp, and accepted and paid orders of the foreman to the amount of $973.40, Rorabeck protested to Start about carrying out the agreement by executing a Pill of sale. The theory of the plaintiffs was that they were given an absolute title to the property through these conveyances. The defendants, who claimed through a subsequent bill of sale from Rorabeck & Moore, claimed that the bills of sale to the cask company were given as security, and that only about $50 remained due on them, and that this was tendered to plaintiffs by defendants. The plaintiffs’ testimony tended to show a much larger lien, even if the instruments were to be treated as security.

A large number of assignments of error appear in the record, but we do not deem it necessary to consider them at length. One, however, merits attention. It appears in evidence that the cask company, under whom plaintiffs claim, caused the bills of sale to be filed in the office of the township clerk. The circuit judge charged the jury as follows:

“ Something has been said about the fact of the bills of •sale to the Guelph Patent Cask Company and to Mr. Start being placed on file in the town clerk’s office, and, as I understand it, it is claimed the placing of those bills on file is evidence that they were intended as security. It is true that it is not necessary to file a bill of- sale that is not intended as security, but I charge you that the fact of filing such bills of sale would be no evidence, one way orfhe other, as to whether or not the bill of sale was intended as an absolute sale, or was intended as security, as claimed by the defendants. ”

This instruction conflicts with the holding of the court in Vessels v. Beeman, 87 Mich. 481, and must be held erroneous. It is contended that this error was harmless, for the reason that the plaintiffs were entitled, in any» view of the case, to recover more than the amount found by the jury. We are not, however, able to say this with such certainty as to cure the error, particularly as the-entire testimony is not included, the certificate being that the record contains the substance of all the' testimony deemed by the circuit judge material as bearing on the assignments of error.

We think the inventory made by witness Maltby, based in part on information received from others, should not have been received as evidence.

The other points relied upon are not likely to arise on a new trial.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    FEATHER v. FEATHER’S ESTATE.
    1. Married Women — Power to Contract — Promissory Notes.
    A married woman may bind herself by contracts relating to her separate property, and may borrow money upon her own account; but she cannot bind herself by a note given as surety for her husband, or to secure the payment of money nominally received by her, yet in fact received for the use of her husband.
    2. Same — Claim Against Estate or Decedent — Evidence.
    Claimant presented for allowance a claim against the estate of his deceased wife for moneys paid in discharge of a note executed by himself and wife, which he claimed to have signed as surety merely. Upon appeal from an order disallowing the claim, claimant’s daughter testified that she went, under her mother’s directions, to the person who was to loan the money in consideration of which the note was given, obtained it, and took it to her mother; that her mother prepared a note, which both of her parents signed, and that she delivered the same to .the lender. It appeared that the wife owned the farm upon which she and her husband lived, and there was testimony tending to show that she conducted the same in her own interest. The testimony of the daughter , was disputed, by the lender, who testified that she loaned the money to claimant; but other testimony tended to impeach that of the lender. Held, that there was evidence to go to the jury in support of the claim.
    3. Same.
    The testimony of laborers who had worked upon a farm owned by a married woman, and occupied by herself and husband, that their wages were paid by the wife, is competent in support of the contention that the farm was conducted in the interest of the wife.
    Error to Washtenaw; Kinne, J.
    Submitted January-28, 1898.
    Decided March 22, 1898.
    Joseph Feather presented a claim against-the estate of Caroline Feather, deceased. The claim was disallowed in the probate court, and claimant appealed to the circuit. From a judgment for claimant, defendant brings error.
    Affirmed.

      Frank É. Jones (Seth C. Randall, of counsel), for appellant. ^

      M. J. Lehman and Arthur Brown, for appellee.
   Montgomery, J.

Claimant presented for allowance a claim against the estate of his deceased wife. The claim was for money paid in discharge of a note executed by deceased and claimant. Claimant asserts that he-was a mere surety, and that the obligation was the obligation of deceased. It appears by the testimony that Mrs. Feather was the owner of a farm consisting of 72 acres of land, upon which the parties lived; that, some time before her death, a note was given to a sister of the deceased, Mrs. Brainard, for $1,200, borrowed money. The question for determination by the jury was whether this money was borrowed by deceased for her own use.

The main questions of law discussed in the briefs of counsel are not novel, but, on the contrary, have been well settled. This court has uniformly held that a married woman may bind herself by contracts relating to her separate property, and it is, of course, equally clear that she may borrow money if she borrows it on her own account. On the other hand, a wife cannot bind herself by a note given as surety for her husband, nor to secure the payment of money nominally received by her, yet in fact received to the use of the husband. Fechheimer v. Peirce, 70 Mich. 440; Schmidt v. Spencer, 87 Mich. 121; Fisk v. Mills, 104 Mich. 433. The difficulty in the present case is in the application of these rules to the facts of the case. The claimant gives testimony tending to show that deceased, during all the time that the parties lived together on the farm, kept the account of the financial matters on the farm, kept the money which came from carrying on the business, paid the help, and paid some other bills. The testimony, however, shows that claimant during this time had charge of the work on the farm, and directed the work of the men employed. The only direct testimony tending to charge deceased for the money in question is that given by Lizzie Feather, a daughter of claimant, who lived in the family during this time, and who testified that, when the $1,200 was procured, deceased directed the witness to go to Mrs. Brainard, and get the money; that she did so, and took it home, and gave it to her mother (deceased); that her mother prepared a note for the amount; that both she and claimant signed it, and that it was taken by witness, and delivered to Mrs. Brainard; that she did not know what Mrs. Feather wanted to do with this $1,200. This witness also testified that her father had charge of the work on the farm, through the direction of deceased, and that, whenever anvthing was sold on the farm, the money was given to deceased. This testimony on the part of the claimant was disputed by Mrs. Brainard, who testified that the loan of $1,200 was made to Mr. Feather; but there is testimony tending to impeach her statements, the probate judge having been called to testify that she testified in the probate court that she had loaned the money to Mrs. Feather, and that the note was given by both Mr. and Mrs. Feather.

Defendant’s counsel objected to the testimony of numerous witnesses who were called to testify that they had performed work upon the farm in question, and that their wages were paid by Mrs. Feather. We think this testimony was admissible, as bearing upon the question of whether the farm was being conducted in the interests of Mrs. Feather or of claimant. The circuit judge charged upon this question that the mere fact that Mrs. Feather herself paid the men employed upon the farm did not in itself establish the claim made, but that it was one of the circumstances to be considered by the jury.

It is also claimed that there is no evidence whatever tending to show that deceased borrowed this money on her own account. We are not prepared to say that there was a total lack of evidence on this subject. The testimony of Lizzie Feather referred to tends to show that deceased was the principal in the transaction. It is true, this testimony was disputed; and, had the testimony of Mrs. Brainard stood unimpeached and uncontradicted, we should hesitate before holding that there was evidence for the jury. But such is not the case, and the case is to be treated as though thé testimony of Mrs. Brainard were out of it; and we are not prepared, in view of this, to hold that the testimony of Lizzie Feather had no tendency to establish the facts claimed.

No other questions arise in the case of interest to the profession. An examination of the record convinces us that no prejudicial error was committed, and the judgment will be affirmed.

The other Justices concurred.


text:
    PEOPLE v. CRAIG.
    Criminal Law —Carnal Knowledge op Child — Witnesses — Veracity — Evidence.
    In a prosecution for carnally knowing a female under the age of 16 years, the prosecution attempted to show, as a corroborative circumstance, that pregnancy had resulted from the alleged intercourse with respondent. Upon cross-exami- . nation, the prosecutrix admitted having written certain confessions of respondent’s innocence and of her own misconduct, but claimed that they were written by direction of respondent, and under threats. Held, that it was competent for respondent to show, as bearing on the truthfulness of the prosecutrix, that the girl had had intercourse with others.
    Error to Houghton; Hubbell, J.
    Submitted January-28, 1898.
    Decided March 22, 1898.
    George Craig was convicted of carnally knowing a female under the age of 16 years, and sentenced to imprisonment for 20 years in the state prison at Marquette.
    Reversed.

      J. F. Hambitzer, for appellant.

      Fred A. Maynard, Attorney General, and A. T. Streeter, Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was 'convicted of having carnal knowledge of a female child, one Annie Dapio, while a member of respondent’s family. On the trial she gave evidence supporting the charge, and also gave testimony tending to show that respondent furnished her medicines, which she took by his direction, and which produced a miscarriage. On her cross-examination, written confessions, signed by her, were introduced, and also a written statement to the effect that respondent had always treated her kindly, and that he had never tried to take any liberty with her. The witness admitted having written these letters, but testified that they were written by direction of respondent, and under threats. Respondent was a witness in his own behalf, and, after having denied the charge brought against him, testified that “Annie was a wild girl, and that he had just about caught her in different places,- — -that is, with different ones.” He was asked, “When did you first commence noticing these acts of hers, — the first that you saw anything of the kind?” That was objected to, and ruled out.

We think this testimony should have been received for its bearing on the truthfulness of the complaining witness. It is true, as contended by the prosecution, that the character of the female for chastity is not ordinarily involved in a prosecution for this offense; but by the receipt of these confessions, and the statement of the witness that they were forced from her, the line of inquiry was opened up, particularly as the prosecution had attempted to show that pregnancy had resulted from the alleged intercourse with respondent. This could only have been offered to corroborate the statement of the complaining witness. If com-' petent for this purpose, it was proper for respondent to meet it by showing a state of facts justifying an inference that another than he was responsible for the condition of the girl. People v. Kaminsky, 73 Mich. 638. This question was preliminary, it is true, but the objection was that “the fact that she [the witness] had .a crime committed on her by some one else can have no bearing on the question involved.” Respondent’s counsel stated that it was offered for its bearing on the truth and veracity of the witness. For this purpose it was admissible. However strong the case for the people may be, we think the defense was entitled to the benefit of this testimony.

Conviction set aside, and new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. TURNER.
    Criminal Law — Bigamy—Defective Complaint — "Waiver.
    An objection that the complaint in a prosecution for bigamy was made by the husband of the respondent is waived by pleading to the information.
    Error to Ingham; Person, J.
    Submitted January 28, 1898.
    Decided March 22, 1898.
    Alice Turner was convicted of bigamy, and sentenced to imprisonment for two years in the Detroit house of correction.
    Affirmed.

      James Harris, for appellant.

      A. M. Cummins, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the offense of bigamy, and appeals from that conviction. The complaint was made by the husband of the respondent, though he was not so described in the complaint. The respondent waived examination before the magistrate, and was bound over to the circuit court for trial. An information was filed against her by the prosecuting attorney, which was verified by the prosecuting attorney, to which the respondent pleaded not guilty. A week later the trial of the case was commenced. The jury was sworn, and a witness produced upon the part of the people, when objection was made to any further trial of the case on the ground that the husband could not make a complaint, and that the complaint and all subsequent proceedings were void. The objection was overruled, the trial proceeded, and respondent was convicted.

It is urged on the part of the respondent that the proceedings are void ab initio, and respondent should be discharged; citing Hubbell v. Grant, 39 Mich. 643; Calder v. Bull, 3 Dall. 390; People v. Williams, 1 Idaho, 85; Merwin v. People, 26 Mich. 298 (12 Am. Rep. 314); Turner v. People, 33 Mich. 363; People v. Quanstrom, 93 Mich. 254 (17 L. R. A. 723). The first of these cases is a civil case. In the Idaho case the alleged offense is held not to have been an offense when the act complained of was done. In the Merioin Case the information upon which the trial proceeded did not state an offense. The case of Turner v. People does not sustain the position taken by the respondent. The case of People v. Quanstrom decides that a lawful wife cannot make a complaint against her husband for bigamy,' and, if the question had been raised at any time before the respondent pleaded to the information, it would have been the duty of the court to discharge her. An examination of the original record in People v. Quanstrom shows, what does not appear in the opinion, that the respondent, when arraigned by the prosecuting attorney, stood mute. Doing this, he of course waived nothing by his plea. In the ease now before us an information complete in form and substance, which was verified by the prosecuting attorney, who was competent to verify it, was filed. To that information the respondent did not object, but pleaded thereto not guilty. We think this was a waiver of the want of regularity in justice’s court, and gave the circuit court jurisdiction to try the case. Washburn v. People, 10 Mich. 372; People v. Jones, 24 Mich. 215.

Judgment is affirmed.

The other Justices concurred.