text:
    WILSON v. FARMERS’ MUTUAL FIRE INSURANCE CO.
    Fire Insurance — Location of Property Insured-EstoppelQuestion for Jury.
    A farmers’ mutual fire insurance company insured certain farm buildings and tbeir contents, without specifically describing the contents. Eight years’later additional insurance was taken on the house and contents and the necessary changes were made in the policy. Plaintiffs had at that time erected a barn some distance away from the buildings insured and removed thereto certain machinery which had been formerly stored in the barns insured. There was testimony that at the time the additional insurance was arranged for, the question was raised as to whether the machinery stored in the new building was protected by the policy, and that defendant’s officers who were present assented that it was. Held, that while it is the general rule that place and location are of the essence of a risk, especially when the property insured is not otherwise described, yet it was a question properly submitted to the jury whether or not defendant was estopped by the action of its officers to demand the application of the rule.
    Error to Lenawee; Chester, J.
    Submitted February 23,1909.
    ( Docket No. 47.)
    Decided May 25, 1909.
    Assumpsit by Horatio L. Wilson and another against the Farmers’ Mutual Fire Insurance Company on a policy of insurance. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Bird & Sampson, for appellant.

      Charles A. Wilson and Smith, Baldwin & Alexander, for appellees.
    The policy of insurance was issued upon the written application of the plaintiffs September 4, 1897; they becoming members of the defendant company. In August, 1903, additional insurance on the dwelling and its contents was arranged for and necessary changes made in the policy. Descriptions of property insured and amounts
    for which insured are here given:
    On frame house 26x30, 15x20, 14x16-----------------§1,200
    On contents therein-------------------------------- 500
    On barn 30x40, shed 20x80, cornhouse 14x20, hen-house 12x14, windmill and fixtures.-.............. 360
    On toolhouse 18x36................................. 50
    On barn 30x40, 20-foot posts......................... 290
    On contents of barn buildings.......................1,150
    §3,550
    Added to dwelling house 20x26--------------$1,050
    “ “ contents in dwg. house............ 500 1,550
    $5,100
    The application for insurance describes a barn 30x40, shed 20x80, cornhouse 14x20, toolhouse 18x36, barn 30x40, 20-foot posts, and, as in the policy, the only reference to contents of any of these buildings is in the item “Contents of barn buildings $1,150.” Certain by-laws of defendant are printed upon the policy of insurance, among them the following:
    (19) “All stacks standing on farms of insured shall be considered as contents of barns, and all policies shall be so construed.”
    (21) “All farm property usually kept in barn buildings, including live stock, When burned or damaged by the burning of said buildings, shall be considered as contents thereof, when in the yards about said buildings.”
    None of the buildings, and none of the contents of the buildings, described in the policy, were destroyed by the fire, which occurred May 29, 1905. Some time in 1903 plaintiffs erected a building about 100 rods away from the group of barns and other buildings described in the policy and removed to and stored therein the larger farm machinery and tools. It was this building and the contents which the fire destroyed. It is not claimed that the burned building was insured. The question presented is whether the machinery and tools were covered by the policy. It is the contention of appellant that this is a question of law and is raised by the refusal of the trial court to direct, upon all of the evidence, a verdict for defendant. The trial judge was of opinion that the terms of the policy did not clearly indicate whether the destroyed tools were insured. He said to the jury, among other things:
    “The plaintiffs claim that by the terms of this policy these tools were insured. The defendant insists that by the terms of this policy these tools were not insured. And that is the question we are going to leave to you to determine. It is true, as has been stated, that it is the duty of the court to construe a written instrument; but, where a written instrument is so drawn that the court is not able to tell just what it means, then evidence may be introduced upon that subject, and the paper, and you may find out just what the contract is.”
    In May, 1903, when the addition to the dwelling house was insured and $500 was added to the insurance upon contents in the dwelling house, officers of defendant were at the home of plaintiffs discussing the matter of the additional insurance. Martha A. Wilson said, in substance, that she thought they were not carrying enough insurance on the contents of the barns because “at times, when we have our barns full, our crops all gathered, the crops alone would more than amount to what you are carrying on your buildings,” to which her husband replied that, since he had his tools in the new shed, the amount carried was about right. To this there was, it is said, some expression of assent from one or both of the officers of defendant. It is argued for plaintiffs that from this the jury had the right to infer that the officers must have understood that the tools referred to, formerly kept in and about the barns, were insured while in the new shed — at least that plaintiffs so understood it — and if it were not so that the officers of the company should have spoken. It is claimed, further, that defendant is estopped to deny liability because :
    (a) Down to the time of the trial the ground of non-liability asserted was that the tools were not kept in an insured building; that, having invited plaintiffs to make proofs of loss and to go before the board, it cannot now be claimed that the property was not covered by the terms of the policy.
    (&) After the tools had been stored in the new shed, assessments were paid, which assessments were based in part upon the valuation of personal property stated in the policy.
    (c) The defendant invited plaintiffs to arbitrate the matter and after they had been put to some expense in that behalf declined to submit the matter to arbitration.
    It was agreed that the destroyed tools were worth $300. At the time of the fire, there were contents in the insured buildings. The company reserved the right to cancel any policy whenever, in the opinion of its board of directors, its interests required such cancellation. The insurance was to continue in force so long as the insured paid assessments, or until the policy was canceled.
   Ostrander, J.

(after stating the facts). It will be observed that the personal property is not described otherwise than by its location. The contents of a barn or of barns, on a farm, unlike the barn or barns, are not permanent, and the risk assumed by the insurer is not limited to the contents at the time the policy is issued. It is the general rule that place and location are of the essence of a risk, especially when the property insured is not described otherwise than by location. The policy in question differs slightly from the one considered in Benton v. Insurance Co., 102 Mich. 281 (26 L. R. A. 237). That policy described “onebarn” and, in a separate item, “on contents in said barn.” It described “one toolhouse,” and, separately, “on contents in toolhouse.” Plaintiff built a new barn, and in it he stored grain and tools. This barn and its contents were destroyed by fire. It was held that the contents of the barn were not within the protection furnished by the policy. There is no intimation, however, in the opinion, and none in the numerous cases cited, sustaining the proposition that, if tools actually in the insured barn when the policy was issued had been for convenience placed in the insured toolhouse and had been there destroyed by fire, the owner could not have recovered for them as for contents of the toolhouse. So, under the provisions of the policy in suit, there can be no doubt that the risk covered at the time of the fire the contents of any of the barns described in the policy wherever they may have been situated when the policy was issued, and however much they may have changed by use, replacement, and season.

But when it is attempted to extend the risk to the contents of one or of several other barns, not in existence when the policy was issued, the case is brought within the rule of Benton v. Insurance Co., unless the defendant is estopped to demand the application of the rule. If it is estopped, it is because it consented, in substance and effect, that the property destroyed should be, in the new and uninsured building, considered as contents of barn buildings within the meaning of the policy. One conclusion to he legitimately drawn from the conversation with the officers of defendant company which has been referred to is that, in deciding not to increase the amount of insurance upon the contents of the barns, plaintiffs regarded the tools stored in the new shed as withdrawn from the protection of the policy and considered and understood the word “barns” to mean the barns mentioned in the policy, and the contents of such barns and of no others to be the * ‘ contents of barn buildings ” referred to in the policy. But this is not the only conclusion which may be reasonably drawn. Plaintiffs regarded the risk of loss to be diminished by placing these larger farm implements in the detached and little-visited new building. In consequence they considered themselves fairly protected against loss of the contents of their barns without increasing the amount of the indemnity and the attendant cost. Assuming this to be what plaintiffs meant, and that the officers of defendant so understood, and in view of the fact that the company itself employed in the policy the term which is of importance here, and that the conversation in question was upon an occasion when the officers of defendant had called upon plaintiffs to determine the amount of insurance they should carry, there is reason for saying that both parties regarded the destroyed property as covered by the very general terms of the policy, and that assessments were thereafter paid and received with that understanding.

We reach the conclusion that the court was not in error in refusing to direct a verdict for defendant.

The judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    FULWELL v. BROWN.
    1. Vendor and Purchaser — Sales—Warranty of Title — Evidence.
    The modern and general rule is that a sale of personal chattels implies an affirmation by the vendor that the chattels are his, and he therefore warrants the title, unless it appears by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold.
    2. Same.
    On a bill for the reformation of a contract for the purchase of a lease of a hotel and its appurtenances, and to enjoin the defendant from negotiating certain promissory notes given in payment therefor and from enforcing a chattel mortgage given to secure the payment of said notes, on the ground of the failure of title in defendant of certain machinery connected therewith, evidence examined, and held, insufficient to establish that defendant claimed to own said machinery or attempted to transfer a greater title in said premises than he possessed, and that the bill was properly dismissed.
    Appeal from Wayne; Brooke, J.
    Submitted February 2é, 1909.
    (Docket No. 55. )
    Decided May 25, 1909.
    Bill by George Fulwell against John H. Brown for the reformation of a contract, and to enjoin the negotiating of certain promissory notes and from enforcing the terms of a chattel mortgage given to secure their payment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Bowen, Douglas, Whiting & Eaman, for complainant.

      Mayhury, Lucking, Emmons & Self man, for defendant.
    On September 16, 1905, the defendant was engaged in the operation of the Hotel Normandie in the city of Detroit. His lease of the premises from the owner of them is dated April 30, 1904, and the term created by the lease expires May 1, 1914. He covenanted with the lessor to make necessary repairs to the interior of the building, the machinery, elevator, and other appliances. The said lease contains the following provision:
    “This lease is made to take the place of a certain other lease made by said first party to one Charles Roe, dated December 31, A. D. 1901, the rights of said Roe having been acquired by said Brown, which lease is hereby surrendered and canceled.”
    In the building were some large steam boilers, bricked in, an electric lighting plant, two engines, some steam pumps, and various other machinery which appeared in an inventory kept by the defendant, and appeared upon the regular monthly balance sheets made up by the proper employes of the hotel at a value somewhat in excess of $7,000. The complainant, introduced to this property and to the defendant by a broker, after an examination of the hotel property and on September 15, 1905, submitted to the defendant a proposition reading as follows:
    “ Dear Sir: I beg to submit the following offer to purchase your title and interests in ‘The Normandie’ Hotel, Detroit, Mich.:

      “First, I agree and will pay you for the lease, furniture, and such machinery as you own and now contained in said Normandie Hotel, also all fixtures, equipment and good will, viz., thirty ($35,000.00) five thousand dollars.
    _ “Furthermore, I agree to purchase and pay you additional for all merchandise (at cost price) contained in said hotel at date of transfer — estimated about $3,000 more or less, said stock not to exceed $4,000. I also agree to pay you for unexpired insurance and unexpired liquor license —prorated; payments to be made as follows: Ten ($10,-000.00) thousand dollars in cash on date of transfer of your title and interests in ‘ The Normandie ’ and possession given me. Balance at deferred payments to be discharged and paid in the following manner:
    _ “ A series of certain promissory notes will be issued and signed by myself bearing six (6%) per cent, interest, which amounts will cover my entire indebtedness to you. At end of each calendar month I will pay you one($l,000.-00) thousand dollars for a period until January 31, 1906. After this date and at end of each calendar month following I agree to pay you fifteen ($1,500.00) hundred dollars, to continue these payments monthly and in such amounts until the full amount due is paid.
    “Further, you are to have and hold a mortgage (sufficient to cover indebtedness) on lease, furniture, fixtures and all equipment in and of the Normandie Hotel — all notes to read with privilege of paying before maturity bearing interest rate as above mentioned.
    “George Fulwell.
    “ Sept. 15th,’05.”
    On the next day the parties entered into an agreement, dated that day, but executed some five days later, in and by which defendant agreed to sell—
    “All his right, title and interest in and to a certain lease of the Normandie Hotel property in the city of Detroit, Wayne county, Michigan, and the good will of said business, together with all furniture, fixtures, equipment and machinery, now owned by said Brown situated and contained in the building known as the ‘Normandie Hotel’ for the sum of thirty-five thousand dollars.”
    There is no express warranty of the title to any of the property agreed to be sold and no enumeration or schedule of the property. Certain other personal property was to be inventoried and paid for in addition to the sum of $35,000, and another additional sum was to be paid on account of the assignment of unexpired insurance policies and the city and county liquor licenses, and the unpaid indebtedness was to be secured by a chattel mortgage to be executed by the complainant to the defendant and to cover and be a lien upon all of the property agreed to be sold with additions and betterments. Later on, this agreement was performed; the property being transferred to the possession of the complainant, the chattel mortgage executed, the policies of insurance assigned, and the complainant entering upon the business -of keeping the hotel. Payments were made pursuant to the agreement.
    On or about October 10, 1906, the complainant filed his bill of complaint against the defendant, setting up, among other things, that, in examining the property with the avowed object of purchasing the same, the complainant went through the laundry, engine room, and other portions of the hotel, saw the monthly statements of business which had been made out for the defendant, asked for and was referred by the defendant to a written inventory of property owned by the defendant in the building and in which appeared the items of machinery hereinbefore referred to, valued at upwards of $7,000, and was assured by defendant that if he should purchase the hotel these' items would go with the hotel property. He charges also that defendant said to him that he owned everything in the building with the exception of a little furniture in room 11. Later, having occasion to negotiate new policies of insurance, he discovered for the first time that the machinery was owned by the owner of the building, and, upon informing defendant of that fact, he was told by defendant that he had bought the property from Charles Roe, the former tenant, to which complainant replied that, if the property belonged to the owner of the building, he should insist upon a rebate from the purchase price. He was referred by the defendant to Roe. He further sets out that defendant denies that the said machinery was conveyed to complainant, and refuses to make any allowance or deduction from the purchase price. It is further charged in the bill that there is about $14,000 of the purchase price unpaid, that the notes representing said sum are all in the possession of the defendant, that some reduction should be made from the purchase price on account of the failure of the title to said machinery, and he prays for the following specific relief: That the defendant be enjoined from negotiating or transferring the notes or enforcing the chattel mortgage; that, if it should appear that there is any ambiguity or uncertainty as to whether the bill of sale to complainant included all of the property set forth in the said schedule of machinery, then that the bill of sale should be reformed so as to truly express tbe agreement between the parties and so as to show and include all of the property set forth in said schedule of machinery.
    Defendant answered the bill, admitting the sale and the execution of the various papers which have been referred to, says that complainant purchased with full knowledge of all the facts pertaining to the machinery, electric light plant, etc., in the house, asserts that he did convey all the title which he (defendant) had in said property, and that his interest was fully known to the complainant at the time of the purchase, denies that there has been any mistake or misunderstanding, and insists that the complainant has a complete and adequate remedy at law. Proofs at considerable length were taken, and a decree was entered dismissing the bill.
    It is the contention of complainant that the agreement to sell is an implied warranty of title in the vendor to some machinery, some furniture, some fixtures, in his possession, in the leased building. It is said in the brief:
    “We ask this court, as we did the trial court, to point out what machinery did pass.”
    And again:
    “We submit the complainant, Ful well, is entitled to a decree in this case, that he is entitled to a deduction equal in value to the laundry machinery and electric lignt plant as carried on Brown’s books by himself; or at least is entitled to a proper deduction, which deduction should represent such a fair proportionate valuation as shall be placed upon this machinery, or was intended should be placed upon this machinery in the transaction between the parties.”
   Ostrander, J.

(after stating the facts). The modern general rule, in England and in the United States, is that a sale of personal chattels implies an affirmation by the vendor that the chattels are his, and he therefore warrants the title, unless it appears by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold. 2 Mechem on Sales, §§ 1300-1309; Croly v. Pollard, 71 Mich. 612, 615. The first difficulty which counsel and the court encounter does not relate directly to the validity of the vendor’s title to such property as he owned, but to a specification of the property to which he asserted ownership. It is clear that the written agreement does not specify and does not, by reference, make certain the property which was sold; nor does the chattel mortgage furnish the information. It is a fact to be determined by evidence other than the writings which were made and the possession which the vendor had. Complainant both finds and does not find such specification in the inventory and in the monthly statements which have been mentioned. I say he does not find it here because it appears to be agreed that the boilers, and perhaps some other of the machinery described in the inventory, were so connected with the freehold as to negative the idea that they were chattels separable from the freehold. Upon this subject the parties were permitted to introduce testimony. It is admitted by both parties that there were inquiries and representations with respect to the machinery which the vendor claimed to own, as well as with respect to furniture, etc. It is impossible to harmonize the testimony concerning the representations which defendant made about his ownership of machinery. It will profit no one to set out the testimony. While the case is not free from difficulty, we have reached the conclusion that it was understood by both parties that defendant would not and did not represent that he was owner of the machinery in the building, and that he intended to sell and complainant was satisfied to purchase such title and interest in the property, described generally, as defendant had. In this view of the testimony, it is not material to ascertain what machinery, if any, the defendant owned.

The decree is affirmed, with costs.

Blair, C. J., and Grant, Montgomery and Hooker, JJ., concurred.


text:
    PEOPLE v. STICKLE.
    1. Criminal Law — Wife Abandonment — Who May Make Complaint. ' ■
    Act No. 144, Pub. Acts 1907, authorizing the superintendents of the poor and the county agents of the State board of corrections and charities to make complaint against a husband for deserting his family, does not preclude the wife from making complaint against her husband for said offense. The general rule is that one who is competent to testify as a witness and has knowledge of the facts, may make the complaint in a criminal case.
    2. Same — Husband and Wife — Abandonment — Desertion — What Constitutes — Instructions.
    In an action under Act No. 144, Pub. Acts 1907, against a husband for desertion of his wife, respondent was entitled to a requested instruction that “abandonment or desertion under the statute, means to separate from, wrongfully, without intention of again resuming marital relations;” since it is such wilful abandonment or desertion without just cause which is of the essence of the offense. That the husband is unable to provide for the wife or family, that she may earn a living, or that her friends and relatives will keep her from want, does not excuse wilful abandonment; nor is the resulting burden to the public an element of the statutory offense.
    3. Constitutional Law — Statutes—Title—Sufficiency.
    A statute is not void for duplicity of title and objects, under section 20, article 4, of the Constitution, where the title, after stating the object, does no more than add a notice of a repealing clause, which repeal would be effected by implication by the enactment of the law itself.
    4. Same.
    Act No. 144, Pub. Acts 1907, § 1, which provides, after stating the elements of the offense, for securing to the family of a convicted person a portion of his earnings during his confinement, is not invalid under section 20, article 4, of the Constitution; since there is an apparent and necessary connection between the offense created, its punishment, and the enforced use of his earnings after his conviction.

      5. Same.
    And the provision in said section allowing the convicted person before sentence to give a bond for the support and maintenance of his family, upon the approval of which the court is authorized to suspend sentence, is also within the object expressed in the title; since such provision is intended to secure such maintenance by the voluntary action of the convicted person.
    6. Criminal Law — Suspension of Sentence — Statutory Construction.
    The provision in said act for the suspension of sentence upon a person convicted will not, for the purpose of defeating the. law, be construed as conferring any new power upon courts, a different construction being reasonably permitted.
    Exceptions before judgment from the superior court of Grand Rapids; Stuart, J.
    Submitted February 11,1909.
    (Docket No. 150.)
    Decided May 25, 1909.
    George F. Stickle was convicted of deserting his wife.
    Reversed.

      A. A. & H. A. Ellis, for appellant.

      John E. Bird, Attorney General, John W. Powers, Prosecuting Attorney, and Colin P. Campbell, Assistant Prosecuting Attorney, for the people.
   Ostrander, J.

Respondent was convicted of violating Act No. 144, Pub. Acts 1907, which act, with its title, is set out in the margin of this opinion. His wife was the complaining witness. Complaint was made January 8, 1908, and the alleged date of- the desertion is December 27, 1907. Upon being arraigned in the circuit court, he moved to quash the information upon the grounds (1) that the statute authorized the complaint to be made only by the superintendent of the poor or by a county agent of the board of corrections and charities; (2) that the statute is unconstitutional and void because expressing more than one object in its title. The motion was denied, and respondent pleaded “Not guilty.” At the trial respondent demurred to the evidence for the people; one of the grounds of demurrer being—

‘1 That the statute is unconstitutional and void because it attempts to embrace and does embrace two different and distinct matters, namely, making certain things a crime, and also providing for the employment, control, and management of penal institutions in this State.”

Another was that the testimony for the people did not prove, or tend to prove, that the wife was, or was likely to be, a burden on the public. The ruling was adverse to the respondent, who thereupon offered testimony tending to disprove the case made for the people. The court declined to instruct the jury to return a verdict for respondent. To these various rulings of the court exceptions were taken, as well as to rulings made during the progress of the trial concerning the conduct thereof and to refusals to charge and to the charge as given, .and the case comes to this court on exceptions beforé sentence. The wife was the only witness for the people.

The substance of all of the testimony given at the trial is printed in the record. It is at least doubtful whether the testimony is not as consistent with the idea of non-abandonment of the wife as with the one of abandonment. But we cannot say there was no 'evidence to support the verdict. We do not find that error was committed in receiving or rejecting testimony. The rule that one who is a competent witness and has knowledge of the facts may make complaint in a criminal case permits the wife to be the complaining witness in this case. No good reason has been suggested for holding that, because a superintendent of the poor or a county agent may make the complaint, it was intended to give them the exclusive right to initiate proceedings. This conclusion is supported by State v. Giles, 101 Me. 349; State v. Woodmansee, 19 R. I. 651; State v. Newberry, 43 Mo. 439. See, also, People v. Sebring, 66 Mich. 705.

The charge of the court did not give to the words “deserts” and “abandons” the meaning which the statute imports, and which the respondent was entitled to have given to them in defining that element of the statute offense which consists in the abandonment of the wife. The marital relation implies, not only provision by the husband for the wife and family, but the living together and cohabitation of the parties thereto. Desertion of one by the other means more than going away, more than separation. It negatives the idea of a friendly separation or a separation for just cause. “Abandonment ” is defined as:

“The act of a husband or wife who leaves his or her consort wilfully and with an intention of causing perpetual separation.” 1 Bouvier’s Law Dictionary, p. 2.

The same author (Id. p. 561) defines “desertion” as “the act by which a man abandons his wife and children, or either of them.” As a cause for divorce, “ desertion ” means a wilful abandonment by one of the parties of the other without cause and againstthe wish of the other party. Warner v. Warner, 54 Mich. 492. See, also, Place v. Place, 139 Mich. 509, 511; Johnson v. Johnson, 125 Mich. 671; Cox v. Cox, 35 Mich. 461; Rose v. Rose, 50 Mich. 92. It is such an act, namely, a wilful abandonment of the wife or family without just cause, which the statute is designed to prevent and which is made a felony unless provision is made by the husband for his wife or children, as the case may be. That he is unable to make the required provision does not excuse the act. It is the abandonment of wives and of infant children under such conditions that society is properly concerned about. That the abandoned wife may be able to earn a living, or that friends or relatives will keep her from want, does not excuse abandonment. In considering a statute which made disorderly persons of those who, being of sufficient ability, refused or neglected to support their families, it was held upon the words of the statute that liability of the husband did not depend upon the fact that the family had become a public burden. People v. Malsch, 119 Mich. 112. This view is sustained, also, by the fact that the repealed statute of 1903 (Act No. 39, Pub. Acts 1903) made the resulting public burden an element of the statute offense. The repealing statute does not. Respondent was entitled to have the jury instructed, in accordance with his request, that “abandonment or desertion under the statute, means to separate from, wrongfully, without intention of again resuming marital relations.” For the error in the charge and the refusal to charge as requested, the conviction must be set aside.

It is necessary, however, to consider the objections to the validity of the statute, since, if they are sound, no conviction for its violation can be sustained, and it would be idle to order a new trial of the case. The last section repeals a particular act and “all other acts and parts of acts contravening the provisions of this act.” It is said that this clause and the notice of it in the title create duplicity; that the act repealed may stand with the repealing act,, for which reason the law has more than one object. Comparison will discover that these acts cover substantially the same ground, and are aimed at the same evil. The elements of the offense created by the repealed act are abandonment, nonprovisión, a resulting public burden, and the going out of the State by the husband or father. In the repealing statute the last two of these elements are omitted. There is so manifest an inconsistency in the legislation that it will be presumed that it was not the intention of the legislature to continue the earlier act in force. The rule announced in Tolford v. Church, 66 Mich. 431, 439, 440, is applicable. But further than this, we have concluded, for reasons presently to be stated, that the act in question has a single object, and the express repeal of the earlier statute may be regarded as indicative of the object and as making certain the general purpose.

It is said that in the proviso to section 1 and in the provision for securing to the family of a convicted person a portion of his earnings, if he earns money in confinement, are to be found distinct legislative objects. There is an apparent, and we think a necessary, connection between preventing abandonment of families by the husband and father without providing for them and the enforced use of his earnings after his conviction for their support. The provision for judicial clemency is intended to secure such maintenance by voluntary action of the convicted person. The case in this respect is not unlike Robison v. Wayne Circuit Judges, 151 Mich. 315. Whether the provision for securing the earnings of one confined in the Detroit house of correction will be wholly ineffective we do not know.

A question presented in argument, one not raised in the court below, relates to the effect to be given to the proviso to section one. The point is considered for the reason heretofore given. The pardoning power belongs to the executive. If the effect of the proviso is to distribute any part of the pardoning power to another department of government, the legislation is invalid. If it is invalid, we shall be obliged to determine whether the act without the proviso may be sustained. The power to suspend sentence and the power to grant reprieves and pardons are distinct and different in origin and in nature. It has never been supposed that the power of courts to suspend sentence was other than a judicial function. It has been frequently and constantly exercised by courts of record before and since the adoption of the Constitution. 4 Hawk. P. C. chap. 51, § 8; 1 Bishop on Criminal Procedure (2d Ed.), § 1124; 4 Blackstone’s Commentaries, chap. 31; Commonwealth v. Dowdican, 115 Mass. 136; Weaver v. People, 33 Mich. 296; People v. Reilly, 53 Mich. 260; People, ex rel. Forsyth, v. Court of Sessions, 141 N. Y. 288. Assuming the power to be, as it was at common law asserted to be, a power inherent in courts, no new power is conferred upon courts when the legislature in terms authorizes courts to suspend sentence. The distinction between the pardoning power and the power to suspend sentence is clearly pointed out in the opinion in People, ex rel. Forsyth, v. Court of Sessions, supra. It is said:

“The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.”

We do not find in the language employed in the act or in its probable effect if enforced any encroachment upon the exclusive power of the executive to grant pardons.

Is the legislation objectionable as interfering with the power of the court to impose sentence? Reading the proviso, one is impressed that it was intended the suspended sentence should be potential for an indefinite period to secure provision for the family in cases where the respondent was able to furnish the required bond. The provision for taking a new bond when there has been a breach of the one first given implies that the court shall determine whether there has been such a breach, and whether the breach is excused before imposing sentence. We cannot assume that interference with the judicial power was intended, or that the design was to confer any new power. The proviso must be read so as to sustain, and not destroy, the legislation if such reading is reasonably possible. No condition is imposed' upon the exercise of the power of the court to impose sentence in conformity with the statute and a discretion judicially exercised. The exercise of clemency is invited, it is not required. It is as though the legislature had provided for suspension of sentence in the discretion of the court during good behavior. It is said in argument that one found guilty of violating the statute may be subjected for an indefinite period to judicial espionage, and at the end of such period be sentenced. We have already indicated, and this is a complete answer to the objection, that the statute will not be construed as conferring upon the court any new power.

With the meaning we have given it, a meaning gathered from the language employed and the legal effect thereof, the legislation may be sustained. A new trial is granted.

Hooker, Moore, Me Alva y, and Brooke, JJ., concurred.

       “An act to prevent the desertion and abandonment of wife or children by persons charged by law with the maintenance thereof; to make such abandonment and desertion a felony and to prescribe the punishment therefor; to provide for the care of the dependent wife and children; and to repeal act number thirty-nine of the public acts of nineteen hundred three.

        The people of the State of Michigan enact:

      “Section 1. .Any person who deserts and abandons his wife or deserts and abandons his minor children under fifteen years of age and without providing necessary and proper shelter, food, care and clothing for them, shall upon conviction be deemed guilty of a felony and punished by imprisonment in the State prison for not more than three years nor less than one year; or by imprisonment in the county jail not more than one year and not less than three months; Provided, however, if, at any time before sentence he shall enter into bond to the people of the State of Michigan, in such penal sum and with such surety or sureties as the court may fix, conditioned that he will furnish his wife and children with necessary and proper shelter, food, care and clothing, then the court may suspend sentence therein: Provided, That upon failure of such person to comply with said undertaking he may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shpwn may modify the order and take a new undertaking and further suspend sentence as may be just and proper.
      “Seo. 3. When any person is convicted under this act and sentenced to serve a term of imprisonment either in one of the State prisons or in the Detroit house of correction, the warden of the prison or superintendent of said house of correction in which said person shall be confined shall, at the end of each and every week during the period of said term of imprisonment, pay over to any of the superintendents of the poor of the city or county in which the wife or children of such person resides, the sum of one dollar and fifty cents per week, if there be only a wife, and fifty cents per week additional for each minor child under the age of fifteen years, in lieu of any earnings of such person while an inmate therein, said sums to be expended by said superintendent of the poor for the care and support of the wife or children of said person, as the case may be; and it shall be the duty of the superintendents of the poor of the city or county from which such person shall be committed to furnish the warden of the prison or superintendent of said house of correction in which said person is confined, with a sworn statement, showing the names of the wife and children who are left dependent upon the city or county for support, their ages and relation they bear to such convicted person.
      “Seo. 3. In the hearing of all complaints under this act, the wife may testify against the husband without his consent.
      “Seo. 4 Any of the superintendents of the poor of the city or county or the county agent of the state board of corrections and charities for the county wherein the wife or minor children of the person complained of reside, may make the complaint.
      “Seo. 5. Act number thirty-nine of the public acts of nineteen hundred three, and all other acts and parts of acts contravening the provisions of this act are hereby repealed.” Act No. 144 Pub. Acts 1907.


text:
    DETROIT LUMBER CO. v. AUXILIARY YACHT “PETREL.”
    Appeal and Error — Failure to Serve Printed Record or Brief — Effect.
    Supreme Court Rule 38, authorizing the dismissal of an appeal for failure to print and serve the record and briefs, is not applicable to appeals under the water-craft law (section 10833 -10836, 3 Comp. Laws), since, under sections 10835, 10836, either party to such appeal may, after the appeal, take additional testimony, and the hearing in this court is de novo upon the record returned from the lower court and the additional testimony.
    Proceedings under the water-craft law by the Detroit Lumber Company against auxiliary yacht Petrel. There was judgment for defendant, and complainant appeals: On motion to dismiss the appeal.
    Submitted April 6, 1909.
    (Calendar No. 23,321.)
    Motion denied May 25, 1909.

      Trevor & Bumps, for the motion.

      E. T. Berger, contra.
   Ostrander, J.

In the circuit court, in proceedings under the act for collection of demands against water craft, judgment for defendant was entered December 29, 1908. Complainant’s appeal was taken in accordance with 3 Comp. Laws, §§ 10823,10824. The return to this court was made February 13, 1909, and on February 15, 1909, counsel for appellant noticed the cause for argument. This is a motion to dismiss the appeal, upon the ground that the appellant has not printed and served the record or any brief.

This court has not made rules regulating proceedings under this statute, as by section 10830 it is empowered to do. The provisions of Supreme Court Rule 38 cannot be applied, because either party to such appeal may, after the appeal, take additional testimony, and the hearing in this court is de novo “ upon such transcript and depositions” (as shall be returned from the court below), “and further testimony taken,” etc. Sections 10825, 10826, 3 Comp. Laws.

Appellant, therefore, is not in default, and the motion to dismiss is denied, with costs.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    CHICAGO, DETROIT & CANADA GRAND TRUNK JUNCTION RAILROAD CO. v. ST. CLAIR CIRCUIT JUDGE.
    1. Railroads — Crossing Under Street — Erection of Bridge — Expense — Liability.
    Where, under section 6234, subd. 5, 2 Comp. Laws, it is the duty of steam railways crossing a highway to restore it to its former state, as near as may be, the fact that said highway is ■used by an interurban street railway does not affect the liability of said steam railway to erect and maintain a bridge over its crossing under the highway; nor does it authorize imposing any portion of such expense upon the street railway.
    2. Same.
    Nor does the fact that another steam road, pursuant to contract, uses -the same track, affect the liability of defendant; since the adjustment of the equities between said companies • is a matter to be undertaken by them.
    3. Mandamus — Correction of Court Records — Order Nuno Pro Tuno.
    In mandamus proceedings to compel a railroad to erect and maintain a bridge over a street crossing, the irregularity, if . any, in placing of record on August 7th an order made June 15th may be cured by an order nunc pro tunc.
    4. Same — Railroads—Crossing Under Street.
    Where, in such proceedings, it appeared that for several years defendant company, after agreeing and promising to erect the bridge in question, delayed in making any defense to an order requiring such construction until it had been cited for contempt, it is precluded by such conduct from relief by writ of mandamus.
    5. Same — Review—Certiorari.
    Certiorari is the proper writ to review mandamus proceedings; but, as the case is briefed by both parties, the court will consider the application as if properly made and dispose of the questions presented.
    Mandamus by the Chicago, Detroit & Canada Grand Trunk Railroad Company and the Grand Trunk Western Railway Company to compel Harvey Tappan, circuit judge of St. Clair county, to vacate an order directing the erection and maintenance of a bridge over a street crossing.
    Submitted April 6, 1909.
    (Calendar No. 28,131.)
    Writ denied May 25, 1909.

      Louis G. Stanley, for relators.

      Joseph Walsh, for respondent.
   Montgomery, J.

This is an application for a mandamus to the circuit judge requiring the vacation of an order in a mandamus proceeding instituted before him at the instance of the city of Port Huron, in which an order was entered requiring these relators to construct a bridge in Military street in Port Huron across the track of the railway occupied by the defendant the Grand Trunk Western Railway Company. This order was entered on the 7th of August, 1908. A motion was entered to vacate the order, and, that being denied, application was made to this court for mandamus.

The claims of the relators are: ' That the order was entered at a time when the court had • not the authority to enter it, the notice for the hearing having expired; that it appears by the present petition that the Pere Marquette Railroad Company is equally interested with the defendant the Grand Trunk Western Railway Company, in the occupation of this street, and therefore should share the expense of building the bridge; that the bridge when used will be made use of by an interurban railway, and that equitably that company should bear some of the expense of building the bridge; and that the Chicago, Detroit & Canada Grand Trunk J unction Railroad Company has no connection with the railroad across the street in question.

We need not discuss this latter question, as respondent’s counsel, the city attorney, is quite willing that an order be entered relieving the last-named company from the terms of the order entered by the circuit judge.

As to the contention that the interurban or street railway may pass over this bridge if completed, we think the statute plainly imposes the duty upon the defendant railway company of restoring the street to its former state, as near as may be, upon constructing the railroad. Subdivision 5 of section 6234, 2 Comp. Laws. For all purposes of public travel, the street, after its excavation, would be open, and, as the street railway is not an additional servitude under our decisions, it would be open to that company with the assent of the city to occupy this street. If it be restored to its original state, as near as may be, by the defendant railway company, the same privilege may be granted as though the railway company had not crossed the street at all. There was no error therefore in imposing this duty upon the railway company.

The objection that the Pere Marquette Railroad Company is, by virtue of a contract between- it and the defendant the Grand Trunk Western Railway Company, occupying a portion of this crossing with its tracks and trains, does not affect the right to proceed against the Grand Trunk Western Railway Company for the restoration of this street. The Pere Marquette Railroad Company is occupying this ground by virtue of an agreement between itself and the Grand Trunk Western. The adjustment of the equities between these two companies is a matter to be undertaken by them. At the least we are prepared to say that, after the course of conduct by the defendant railway company hereinafter referred to, we are not disposed to interfere at this time by the extraordinary writ of mandamus to relieve the company from a burden imposed under the circumstances of this case.

It appears that this case was adjourned from time to time; the last adjournment being about the 15th of June, 1908. At that time, as appears by the return of the court, the order in question was directed to be entered. It was not, however, placed of record until the 7th of August. If there was any error in this, it is one that may be corrected by entering an order nunc pro tunc. It is not an irregularity which should justify us in interposing with the extreme writ of mandamus.

This case presents a most unusual condition. It appears that as early as the 26th day of July, 1904, the city ■ of Port Huron was engaged in paving Military street and in negotiations with the superintendent of the Grand Trunk Railway system with reference to the construction of this bridge over its right of way. On the 26th of July a letter was addressed to the superintendent of the department of public works suggesting that the present bridge was in such condition that it would be absolutely necessary to renew it with a modern steel bridge in 1905, and that in view of this it was unwise to incur the additional expense necessary to crib up the approaches to permit the paving to be done up to the end of the bridge, adding:

“I made a proposition to your engineer, upon which he looked with favor, and that was to have the paving stopped at the point where the cribbing now stops on the south side; the railway companies to make such repairs to the roadway between that point and the end of the bridge as are necessary to keep it in passable condition until the abutments for the new bridge are built next spring, at which time the railway company to move the planking and other material as has been used for temporary service, and the city to continue the paving up to the end of the bridge.”

The city acted upon this suggestion," and on the 6th of September, 1905, the city attorney addressed a letter to the attorney of the defendant railway company stating:

“It is now three years since I met with some of your officials, and they promised to put in a new bridge; but they have put it off from time to time, although I believe they sent in some plans for a bridge. At the present time this bridge is very unsafe, and the other day when the fire team were called down that way, while going over this bridge, they went through in half a dozen places. We dislike to resort to the courts and desire to maintain amicable relations with the road, but you may readily see that it is getting to the point where we feel we are' being imposed upon. Cannot you take the matter up and save further trouble?”

Again on the 3d of March, 1906, the city attorney wrote to the attorney for the railway company. On the 5th of March acknowledgment of this letter was given, with a statement that it was sent to the superintendent with recommendation.

The petition for mandamus in the circuit court was filed in the circuit court in September, 1907. The order to show cause was issued, returnable October 1st. No answer was ever put in to this petition. Upon the return day of the order to show cause, the relators filed a written motion for adjournment, “in order to give the railroad company time in which to have a conference after which proper proceedings would be taken to either settle or bring the matter to an issue.” Several adjournments were taken by request of relators’ counsel until October 22d. In the interim, the attorney for the relators had a conference with the officials of the city and represented to them that they were ready to enter upon the building of the bridge, but that it would require some time to get out the iron and other materials necessary to carry on the work. Under date of the 23d of October, a letter from the attorney of the railroad company to the city attorney stated that, in conference with the general transportation manager, he had received instructions to' make no contest of the demands of the city if the company could obtain a reasonable time within which to do the work. Relying upon the representations, the city attorney reported the situation to the common council, and the mandamus proceedings were held open until, the following spring. During the winter, in the month of February, 1908, the city attorney wrote to the relators and wanted to know if everything was going all right in the matter of building the new bridge, and asking if there was anything that would delay the matter. In reply to this, relators’ attorney wrote:

“ I have inquired from time to time of our officials and learned that the matter has been progressing in respect to plans, etc. Upon learning the present situation will at once report to you.”

Again on the 25th of March the attorney for relators advised the city attorney “that the general transportation manager has not allowed any delay to occur in his preparation for the new bridge, and that everything is going along as fast as he can possibly push it.” In May again the city attorney wrote the attorney for the relators asking them to stipulate on a day for taking up the mandamus proceeding, and, receiving no satisfactory response to this, notice was duly served to take up the hearing upon the 11th day of May. It then transpired for the first time, as appeared by the correspondence, that the railway company had been in conference with the PereMarquette Railroad Company for the purpose of getting the latter company to bear a portion of the expense. The case was adjourned from time to time, and on the 6th of June, at the request of counsel for the company, the adjournment was had from the 8th of June to the 15th. On the 15th the case proceeded, and the order in question, was directed, but, as before stated, not entered until the-7th of August. No further steps were taken by the railway company, and on the 16th of September the city filed its petition for contempt proceedings, and the order to show cause was issued. Upon the service of this order, the defendant came in with an application to set aside the order, denying the allegation that the bridge was worn out, etc., and setting up that the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company had no connection with the tracks, and averring the obligation of the Pere Marquette Railroad Company to join with the other defendant in the construction of any bridge which should be ordered.

It is hardly necessary to say of these proceedings that they are not such as to entitle the petitioner to appeal to the grace of the court. The delay has been marked by an appearance of indifference. Every opportunity for Rearing on the merits was given the present relator in the circuit, and we think the application for mandamus should be denied, with costs. As, however, the city attorney is content that such an order be made, the direction will be to vacate the order of the circuit court as to the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company, and allow it to stand in full force as to the other relator.

The proper proceeding to review mandamus proceedings is certiorari; but, as the case is briefed by both parties, we treat the case as an application for certiorari and dispose of the questions presented.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Grant, J.

text:
    PARKER, WEBB & CO. v. AUSTIN.
    Municipal Corporations — Regulation op Weighing Devices— Scope op Authority — Ordinances—Validity.
    The charter of a municipal corporation authorizing the common council to regulate weights and measures to be sealed by the city sealer “ so as to be made conformable to the standards of weights and measures established by the general laws of this State,” does not authorize the adoption of an ordinance requiring said city sealer to test and prove the accuracy of computing devices on scales by which the value of the article weighed is determined.
    Appeal from Wayne; Brooke, J.
    Submitted April 15, 1909.
    (Docket No. 34.)
    Decided May 25, 1909.
    Bill by Parker, Webb & Company and others to enjoin George F. Austin, sealer of weights and measures of the city of Detroit, from condemning certain computing scales. From a decree for complainants, defendant appeals.
    Affirmed.

      Orla B. Taylor, John M. Zane, and Charles F. Morse, for complainants.
    P. J. M. Hally, Corporation Counsel, and Fred H. Warren (Albert H. Meads, of counsel), for defendant.
    Complainants in this case, five in number, are retail dealers in meats in the city of Detroit; each carrying on an extensive business. They use certain scales known as the “Dayton Money weight Spring-Balance Barrel-Shaped Computing Scales,” and commonly known as the “Boston Butchers’ Scales.” These scales are manufactured by the Computing Scale Company of Dayton, Ohio, which owns the patents thereof, and are sold by the Money weight Scale Company, of Chicago, 111. The complainants purchased and own these scales, and had used them for a long time; they having been properly sealed by the city sealer as correct. The defendant is the sealer of weights and measures for the city of Detroit. He threatened to condemn these scales and thus prohibit their use by the complainants and other merchants of Detroit. The complainants thereupon filed this bill to enjoin the defendant from taking this action, and thus destroying their property.
    The scale in question is known as No. 63 scale. The platform of the scale, as in ordinary scales, is mounted upon a suitable base. From the base extend upward two arms upon which a stationary cylinder is mounted. Within this stationary cylinder is a revolving drum. At either end of the revolving drum are pinions or gear wheels. These pinions are worked by notched rods or racks, which in turn are worked by springs attached to the platform by a steel rod and thermostat, and when the weight is placed upon the scale the springs are elongated and the rack operates the drum within the scale. The drum consists of an aluminum frame upon which is mounted a specially prepared paper chart, both very light materials, so that the friction is reduced to a minimum. The chart and the frame make up the drum which revolves within the cylinder. Down the center of the chart is a weight graduate and also an inverse weight graduate, giving graduations of weight for every ounce up to 24 pounds, which is the limit of the capacity of the scale. Upon either side of the weight graduate, figures are placed in direct alignment with each indication of weight for two ounces upon the weight graduate. These figures in horizontal columns are also arranged in perpendicular columns, and the drum is so placed inside of the stationary cylinder that each of the horizontal columns, when the drum revolves, shows through a slit on the face of the stationary cylinder. Immediately below the slit, across the stationary cylinder, are arranged figures which show the different prices per pound, and upon this particular scale the prices are 4, 5, 6, 7, 8, 9, 10, 11, 12, 12£, 13, 14, 15, 16, 17, 18, 20, 22, 23, 24, 25, 26, 28, and 30 cents per pound. Hence, when a weight is placed upon the scale, the weight is shown through an opening in the stationary cylinder in front of the weight graduate, and, in direct alignment with each weight graduation of two ounces, will appear, through the slit on the face of the stationary cylinder, the computed value of the particular weight at the different prices per pound; each value appearing above the figure on the outside of the stationary cylinder, indicating the price per pound. The figures appearing through the slit are made larger by a magnifying glass, and stretched the length of the slit is a wire, showing the line upon which the scale balances when empty, or in some of the scales the wire is replaced by a line upon the glass. This line, when it rests upon any two ounces of weight, indicates the value of such weight at the different prices per pound by means of the fact that the line bisects such value figure.

      The No. 63 scale is made for the use of butchers or the fish market trade, for the purpose of weighing heavier articles than ordinary groceries, and for the purpose of weighing articles of smaller and lower values. Its chart is as large as can reasonably be made, and yet not be so heavy as to cause friction in its operation, and at the same time not have a centrifugal motion or a sort of a “fly wheel motion” as it rotates. The front of the scale faces the operator, and through the opposite side of the stationary cylinder, which faces the purchaser, is an opening showing the inverse weight graduation, but no computed values. Hence, in every weighing on the scale the purchaser sees the exact weight that is being given him by means of the weight graduate upon the purchaser’s side of the scale, and, if the scale is brought to balance, that fact will show upon the purchaser’s side as well as upon the dealer’s side of the scale. The computed values that are placed upon the chart are mere matters of arithmetic found by multiplying the weight by the price per pound. The result of the computation is placed exactly opposite the proper weight graduation, so that each of the weight graduations for two ounces is in direct alignment with the computed value opposite, and this computed value must necessarily be indicated simultaneously with the indication of weight. In these computations there are no fractions whatever. Anything less than one-half cent is disregarded; anything amounting to a half cent or more is called a whole cent. The result would be that any fraction less than one-half cent is given to the purchaser, and any fraction amounting to half a cent or more goes to the dealer.
    The case was heard upon pleadings and proofs, taken in open court. The scales in question and other scales manufactured by a competing company were introduced at the hearing in the court below. Many experiments were made before the trial court by witnesses for the complainants and the defendant. The defendant was represented by the attorneys for the competing company, in whose interest evidently the action on the part of the defendant was largely taken. The complainants were represented by the attorneys for the company which sold them the scales. The trial court sustained the complainants’ claim and entered a permanent injunction restraining the respondent from condemning their scales.
   Grant, J.

(after stating the facts). The record presents two questions, one of law and the other of fact. The legal question is: Has the defendant, the sealer of weights and measures of the city of Detroit, the legal authority to determine the accuracy of computing devices and either to approve or condemn them ? The question of fact is: Is the computing device dishonest and false ? Or, stated otherwise, Does it give a greater price for the goods weighed and sold than the dealer is entitled to ?

1. It is conceded that the scale weighs the goods purchased with absolute accuracy, and that the amount of such weight is correctly exhibited to the purchaser upon one side, and to the seller upon the other side, of the scale. The sealer is therefore bound under the law to place his seal of approval upon the weighing part of the machine, because it fully complies with the law. If this chart, showing the price of the commodity, was attached in a stationary way upon the front of the scale facing the seller, or upon the wall beside the scale, or upon the counter, so that the seller seeing the weight could look at the chart and find the- price, it would still be a computing device, subject to the same criticism that it is when placed upon a revolving drum. The sealer can no more condemn the scale in one case than he can in the other, because in each case the weight is the same and is correct. The seller and purchaser are then upon an equal footing. The purchaser, knowing the weight and price per ounce or pound, can make the computation himself. The method by which the seller reckons the total price to be paid is of no material consequence to the purchaser. The seller may arrive at the price by mental process or with paper and pencil, or he may have a chart which shows the value of any amount purchased. This process does not enter into the transaction. It can make no difference to the purchaser how the seller arrives at the result. The purchaser is at no disadvantage so long as he is furnished the means to determine the accuracy of the charge made by the seller. The legal question is therefore narrowed to this: Is the sealer of weights and measures clothed with authority to condemn a chart adopted by the seller for his convenience and expedition in making sales?

By an amendment to the ordinance of the city of Detroit in 1906, it was made to read as follows:

“The sealer of weights and measures shall test and prove all computing scales as to weights and values, and any such scale which may be found to give any weight other than the correct weight for any money value indicated, shall be condemned; otherwise they shall be approved.”

The congress of the United States has power to establish and adopt standards of weights and measures. These standards were early adopted by this State, and have continued in force ever since. Act No. 42, Laws 1837; 1 Rev. Stat. 1838, pt. 1, tit. 7, chap. 3; 2 Comp. Laws, § 4882 et seq. The statute provides for furnishing these weights to each county and township in the State, and for an annual comparison of the scales and weights therein with the standards so furnished. It was held in McGeorge v. Walker, 65 Mich. 5, that the only comparison to be made is with the standard weights so furnished. The legislature by the charter of the city of Detroit has expressly authorized the common council to regulate weights and measures to be sealed by a city sealer “ so as to be made conformable to the standards of weights and measures established by the general laws of this State.” Act No. 55, Laws 1857, chap. 5, § 21, subd. 54. This is the sole power conferred by the legislature upon the common council. “Implied powers” are those which arise from, and are necessary to carry out, the powers expressly conferred upon municipalities. Taylor v. Railway Co., 80 Mich. 77. The express power to examine and determine the accuracy of scales as to weights does not by implication confer upon the council the right to determine the accuracy of charts, ready reckoners, adding machines, or other devices by which the value of the goods weighed shall be determined. The object of the statute is to determine the accuracy of weighing, not the accuracy of the process by which the price is found. The statute aims to protect the public from false weights and measures, and not from the dishonesty of dealers in reckoning the cost of the goods purchased. Bisbee v. McAllen, 39 Minn. 143; Bundling v. City of Chicago, 176 Ill. 340 (48 L. R. A. 230). In the latter case it was held that the power conferred upon the common council “to regulate the sale of meats, poultry, fish, butter, cheese, lard, vegetables and all other provisions, and to provide for place and manner of selling the same,” did not confer upon the council the power to regulate the sale of tobacco.

There is no hint in the charter of any intent on the part of the legislature to confer upon the common council the power to regulate or prescribe methods by which merchants compute the cost of purchases made by their customers, or to supervise adding machines, charts, ready reckoners, or other devices by which the cost is ascertained. It is, however, insisted that this right exists under the general police power inherent in, and conferred upon, municipalities by the very act of their existence. Under the contention of counsel for the respondent, the common council of every municipality in the State is clothed with power to send its employé into the store of every merchant to investigate and condemn every method employed by the merchant which, in the judgment of such employé, may be used to state an incorrect result. The statement of the proposition would seem to afford its best refutation. We are cited to no authority holding that a municipality is per se clothed with authority to investigate business transactions between merchants and their customers. The chart in question is conceded to show the correct price for even ounces and for pounds. Only in case of fractions of the odd ounce is it claimed to be susceptible of dishonest operation. A dishonest merchant under any method can defraud his customer who does not himself take care to estimate the cost. The chart saves time to both seller and purchaser and greatly facilitates business.

Counsel cite and rely upon Harbison v. Knoxville Iron Co., 103 Tenn. 421 (56 L. R. A. 316), affirmed in 183 U. S. 13; City of Crawfordsville v. Braden, 130 Ind. 149 (41 L. R. A. 268); Bundling v. City of Chicago, 176 Ill. 340 (48 L. R. A. 230); Bluedorn v. Railway Co., 108 Mo. 439; Moneyweight Scale Co. v. McBride, 199 Mass. 503. Harbison v. Knoxville Iron Co. did not involve or discuss this inherent police power of a municipal corporation1. The act before the court was a legislative act and involved the power of the legislature and not a municipality. City of Crawfordsville v. Braden involved the right of a municipality under the expressly conferred power to light its streets, alleys, and other public places with electric light, etc., to furnish electric light for private houses and business places for a consideration. The right to do so was sustained upon the ground that “ a light thus produced is safer to property, and more conducive to health than the ordinary light.” Whether under our Michigan decisions the rule of the Indiana court would be sustained — qusere? In this State the power has been conferred by legislative enactment. In Bundling v. City of Chicago the sole question, aside from the one above referred to, was whether under the express authority to provide for and regulate the inspection of tobacco an ordinance regulating the sale of cigarettes was valid. In Bluedorn v. Railway Co. the sole question was the power of the city to regulate the speed of railroad trains through the city. The soundness of that decision cannot be questioned, as it involved not only the right but the duty of every municipality to protect the lives and persons of its citizens. It, however, furnishes no authority for interference in commercial transactions between its citizens. It is sufficient to say of Moneyweight Scale Co. v. McBride that it involved the inherent power of the legislature, and not of a municipality, the creature of the legislature. It is worthy of remark here that the court in that case held that ‘ ‘ the correctness of these scales is not now before us.” The court decided that the statute required the charts to be arithmetically correct, and sustained the law upon that basis. It also held that, if it conferred upon the sealer the power to determine the commercial correctness of the chart, it was unconstitutional.

"Where power was conferred upon the municipality to prohibit any one from circulating, distributing, or giving away circulars, hand bills, or advertising cards of any description in or upon any of the public streets and alleys of the city, it was held that:

“This is not an express grant of power to the city of Detroit to pass a by-law or ordinance to prohibit a person from circulating, distributing, or giving away circulars, hand bills, or advertising cards of any description, in or upon any of the public streets and alleys of said city, and to punish by fine and imprisonment in the county jail or the Detroit house of correction for violation, and there is no such power implied in these provisions of the charter.” People v. Armstrong, 78 Mich. 288 (2 L. R. A. 721).

All we now need to decide is that the power of inspection and regulation in such matters must find its authority in some express provision of the legislature. If at any time the legislature, conceiving that dishonest means are employed by merchants in selling their goods, shall enact a law conferring power upon municipalities to supervise and regulate them, it will then be time for the. courts to determine the validity of such an enactment. Until then we choose not to discuss it.

The decree is affirmed, with costs.

Blair, C. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred.


text:
    WITHAM v. WALSH.
    1. Cancellation on Instruments — Fraud—Evidence—Suffioi-ENOY.
    Complainant, under the terms of a will, was bequeathed a sum of money which she desired defendants to invest for her. Defendants induced her to sign an agreement by which said legacy was assigned to them in consideration for which they were to pay her a certain amount monthly during her lifetime. The agreement recited that complainant did not consider herself competent to carp for her money and invest it properly, and that she had great confidence in the honesty and ability of defendants, which facts were also established by other testimony. Held, that, as defendants occupied a fiduciary relation to complainant, it was incumbent upon them to apprise her of the legal effect of the agreement, and, it appearing from the testimony that her rights had not been so protected, she was entitled to a decree setting aside the agreement on the ground of fraud.
    2. Same.
    Complainant, under the terms of the decree, was properly entitled to follow the fund to the property in which it was invested, and was also entitled to a personal decree against defendants ; since if the property was insufficient to satisfy the terms of the decree, defendants would be allowed to profit from their wrongdoing.
    Appeal from Clinton; Searl, J.
    Submitted April 15, 1909.
    (Docket No. 48.)
    Decided May 25, 1909.
    Bill by Mary Witham against James F. Walsh and others to set aside certain contracts on the ground of fraud. From a decree for complainant, defendants appeal.
    Affirmed.

      William M. Smith, for complainant.

      A. G. Shepard (Lyon & Moinet, of counsel), for defendants.
   Montgomery, J.

This bill was filed to set aside two different contracts made between defendants James F. Walsh and Laura L. Shepard and complainant, and to recover the sum of $2,000 received by said defendants from the complainant under the contracts in question. The bill alleges: That the complainant, at the time of entering into the transactions, was upwards of 60 years of age, wholly inexperienced in business affairs, and had no knowledge of business; that she had every confidence in the defendants, James F. Walsh and Laura L. Shepard, then Laura L. Marvin; and that, as she supposed, she had placed in their hands for investment, to manage and care for her, the sum of $2,000, being a legacy received. from Amy E. Frisbee, in whose family complainant had lived as a domestic and companion for many years. The circuit court granted the relief prayed, and from the decree thus entered the defendants appeal.

The facts are that the complainant is a maiden lady, now nearly 70 years of age. She had for many years lived in the family of Mrs. Frisbee, receiving no wages, but was supplied with her necessities, including medical attendance and clothing. The defendants, James F. Walsh and Laura L. Shepard, are brother and sister, and were nephew and niece, respectively, of the Frisbees. They were practically brought up by the Frisbees, and received the larger portion of the Frisbee estate through the will of Mrs. Frisbee. By the same will a legacy of $2,000 was bequeathed to the complainant. The money was never actually paid into the hands of complainant, but in lieu thereof a receipt was given to the executor, signed by her, acknowledging receipt of the legacy, and the amount of the legacy was applied on the purchase of a lot and store building in the village of Ovid. The evidence both of the complainant and of the two defendants, makes one thing very clear, and that is that the complainant sought to have the defendants, Walsh and Mrs. Shepard, then Marvin, undertake the investment of the amount of her legacy. Mrs. Shepard testified that before the estate was settled the complainant spoke to her about investing the money and also asked her to speak to her brother, Mr. Walsh, about it. Mrs. Shepard testified that she directed complainant to speak to Mr. Walsh herself. Mr. Walsh also testified that complainant spoke to him about investing the money. It is true both of these defendants state that complainant also stated at the same time that she expected that the money would go to them (the defendants) in equal shares after her death. Complainant testified that she had the utmost confidence in the two defendants and did desire that they should invest the money for her.

The result of the negotiations was that through Mr. Shepard, an attorney, who afterwards became the husband of the defendant Laura, an agreement was drawn up between the parties, as follows:

“This agreement made and entered into this 10th day of November, 1900, by and between J. F. Walsh, of Detroit, Mich., and Laura L. Marvin, of Middlebury township, Shiawassee county, Mich., of the first part, and Mary Witham, of Ovid, Mich., of the second part, witnesseth:
“Whereas, said party of the second part was left the sum of two thousand dollars, by the terms of the will of Amy E. Frisbee, deceased; and, whereas, said second party is old and enfeebled and does not consider that she is competent to take care of said money and properly invest the same, and does not want to assume that responsibility ; and, whereas, she has great confidence in the honesty and ability of said first parties, and desires them to attend to the proper investment of said money and assume the risks and responsibilities of the same; and, whereas, said second parties, for the considerations hereinafter mentioned, are willing to assume the risks and responsibilities of the proper investment of said money, for the benefit of the said party of the second part: Now, therefore, said: parties do hereby contract and agree with each other in reference to said matters, as follows, to wit:
“Said second party hereby agrees to and does assign and set over unto the said first parties her claim against the estate of the said Amy E. Frisbee to the moneys to which she is entitled under the terms of said will, which said moneys shall be for the sole use and benefit of the said parties of the first part, subject, however, to the following conditions to be performed by said first parties for said second party, viz.:
“Said J. F. Walsh and Laura Walsh, for and in consideration of the premises, does hereby covenant and agree to and with the said parties of the second part, as follows: They are to pay to said Mary Witham, on the last secular day of each month, during the remainder of her natural life, the sum of ten dollars for her support, comfort and maintenance. They are also to pay all doctor bills now contracted by said Mary Witham, and all other of her debts and liabilities now contracted by her, and in case of a prolonged sickness, should the money above contracted for be insufficient to meet her necessary expenses, they are to advance such other sum or sums as may be necessary, and upon the death of said Mary Witham said parties of the second part are to pay all necessary and reasonable expenses of her sickness and funeral, including a suitable headstone.
“ Said second parties also agree to surrender any claim or claims which they, or either, have against said Mary Witham for her support and maintenance since June 20, 1899.
"Said J. F. Walsh, to secure to said Mary Witham the faithful performance by them of the above agreements upon the part of the said second parties of the second part, is to execute to said Mary Witham a real estate mortgage upon lot seventeen (17), in block thirteen (13), in the village of Ovid, Clinton county, Mich., for the sum of two thousand dollars, conditioned upon the same being immediately due and payable upon the breach of this contract, or any part thereof, by second parties, or either of them. Said mortgage to be collateral to this contract, and to be null and void upon the faithful performance of this contract by second parties.
“ It is further agreed that before said mortgage shall be declared due under the above conditions by said Mary Witham, for the breach of any agreement herein contained to be performed by second parties for first party, that said matter shall be left to the decision of three disinterested persons, to be chosen by the parties hereto, as follows: First parties are to choose one, and second party one, and the two so chosen to choose a third, and the decision of said parties shall be a condition precedent to any steps being taken by second party to foreclose said mortgage.
“It is further agreed that if said Mary Witham does not ask for the appointment of said arbitrators, by a written notice to be served upon said first parties, it shall be deemed conclusive evidence that first parties have in every respect fulfilled the terms of this contract.”

Subsequently another agreement was drawn discharging the mortgage referred to in the above agreement, containing an agreement on the part of the defendants that they would not sell or dispose of the lot and store building which had been covered by the mortgage until the complete satisfaction of the contract with complainant. It is the claim of the defendants that this did not materially change the relations of the parties. The important question is whether the first contract was freely and understandingly made, and this presents a question of fact.

We are satisfied, upon an examination of the record, that, whatever may have been the motives of the parties, the agreement did not embody the understanding of the complainant, and that the relations between the parties were such that there rested a duty upon the part of these defendants and their attorney to make clear to the complainant the provisions of the contract. We need not go beyond the limits of the contract itself for evidence that the defendants understood that the complainant did not consider herself competent to care for her money and invest it properly, nor for evidence that she had' great confidence in the honesty and ability of the first parties. The preamble asserts this, and further asserts that she desired the defendants to attend to the proper investment of the money, and also recites a willingness on the part of the defendants to assume thé risks and responsibilities of the proper investment of said money for the benefit of the party of the second part. Here is a declared purpose of the instrument. It is true that, technically read, the instrument might be understood by a lawyer to have passed the title to these moneys to the defendants. The complainant assigns and sets over her claim against the estate which she is entitled to under the terms of the will, and adds: “ Said moneys to be for the sole use and benefit of said parties of the first part, subject, however, to the following conditions.” There is a seeming inconsistency between this assignment in its terms and the declaration contained in the preamble to the contract. In view of the relation of confidence and trust which existed between the complainant and defendants, which is shown not only by the testimony in the case but by the very instrument in question, we think it was incumbent upon the defendants to have apprised the complainant fully of the legal effect of this instrument, and upon no one connected with this transaction did this duty rest more than upon the attorney, Mr. A. Gr. Shepard.

Further than this, the contract purports to bind the defendants to pay the doctor.bills “now contracted by said Mary Witham.” There were no such doctor bills. Not only had the custom of Mrs. Fr'isbee been to pay complainant’s expenses, including doctors’ bills and for clothing, in consideration of the services rendered her during these many years, but at this very time the doctors’ bills which had been incurred by complainant had been proved against the estate and actually paid by the estate. There is reference also to other debts and liabilities of which there were two items amounting to something less than $80. We think the circuit judge was not in error in holding that there was overreaching on the part of the defendants, that complainant had not an understanding of the effect of this instrument, and that equity requires that she should be reinstated in her estate.

The circuit judge allowed defendants the amount of the obligations owing by her and assumed by defendants to the amount of $80, and charged that against the interest moneys which would accrue at 6 per cent, upon the principal of the contract up to the date of the decree. We think in this the rights of the defendants were fully protected.

Some legal questions are raised. Among others, it is contended that a personal decree should not have passed against the defendants. The court held that, as the money which complainant had, and which was obtained from complainant, was invested in the lot and store above referred to, a lien should be declared upon that property. In other words, that the complainant was entitled to'follow the fund, and also decreed that, in case of a failure to satisfy the amount of the decree out of the property, the parties to the transaction should reimburse the complainant. We see no want of power to grant this relief. Anything short of this would be permitting the defendants to reap the benefits of this transaction and of a wrong perpetrated upon complainant.

The decree will be affirmed, with costs.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


text:
    IRISH v. COMMON COUNCIL OF THE CITY OF MT. CLEMENS.
    Municipal Corporations — Public Improvements — Highways and Streets — Character op Improvements — How Determined.
    Act No. 136, Pub. Acts 1899, chap. 24, § 3, amending the law-governing cities of the fourth class (chapter 88, 1 Comp. Laws), provided that “ when the owners of a majority of the lands liable to be assessed in any special assessment district * * * shall petition to the council for any public improvement except sewers, the council shall order such improvement to be made. In other cases public improvement shall be made in the discretion of the council.” Held, that said amendment merely gives the majority of said property owners the right to initiate such public improvements by requiring the council to act on such petition, and does not withdraw from the council the power conferred by other provisions of the charter to determine the character of the improvement.
    Certiorari to Macomb; Tappan, J.
    Submitted April 27, 1909.
    (Calendar No. 23,348.)
    Decided May 25, 1909.
    Mandamus by Perry H. Irish to compel the common council of the city of Mt. Clemens to order the paving of certain streets. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Franz O. Kuhn and Robert F. Eldredge, for relator.

      Seth W. Knight (James G. Tucker, of counsel), for respondent.
   Montgomery, J.

This is certiorari to review the action of the circuit court in refusing a mandamus to compel the respondent to order the paving of a portion of South Gratiot avenue in the city of Mt. Clemens with macadam in conformity with specifications issued by the State highway department for State reward roads. The return to the order to show cause in the court below shows that, prior to the filing of the petition by relator, the council had, in its annual appropriation bill for the year 1908, appropriated the sum of $12,300 to pay the city’s share of the paving of South Gratiot avenue, at the same time giving notice that it proposed to pave said street, and that the estimated cost of such pavement was $39,000. By virtue of section 3180, 1 Comp. Laws, the city had given notice to the owners of lands abutting upon South Gratiot avenue to put in and lay all such sewer, water, and gas connections in front of their lands and premises as were required, and this order had been complied with. On the 5th of November, 1908, a resolution was duly passed by the common council declaring the intention of the city to pave the portion of South Gratiot avenue in question with brick, bitulithic, westrumite, or asphalt pavement upon a concrete foundation and -with proper curb and gutter, and establishing an assessment district upon which the costs of improvement were to be assessed as a special assessment, and directing the city engineer to prepare the necessary plans and specifications in detail for such proposed pavement. Such resolution further provided and gave notice that the common council would meet on the 7th of December at its usual place for the purpose of hearing objections to such pavement, or to the assessment district, or to the plans, specifications, and details thereof as so prepared by the city engineer, and by him deposited in the city clerk’s office for public examination. On the 7th of December, at the time stated, the council met pursuant to notice, and, no objections being offered, the assessment district was duly confirmed, the pavement of the street with brick, bitulithic, westrumite, or asphalt pavement upon concrete foundation, with proper curb and gutter, was ordered, the cost of said pavement was directed to be levied on said special assessment district, the plans, specifications, and details for said pavement as prepared by the city engineer were duly approved, and the board of special assessors were directed to assess the cost of such pavement in the sum of $40,790 upon the property within the special assessment district in proportion to the foot frontage upon said street. On the 21st of December, 1908, the relator, joining with those owning a majority of the foot frontage on the street, filed a petition with the council asking that the street be improved with macadam according to the specifications for macadamized roads of the State highway department.

The question presented is whether, under the law as it now* stands governing cities of the fourth class, the owners of a majority of the foot frontage upon any street may, after action has been taken providing for paving a street in a certain manner, interpose and require it to be paved or improved in some other manner. Prior to the amendment of 1899, the provisions upon this subject which bear upon the question were as follows: Section 3180,1 Comp. Laws, provides:

“The council shall have power to grade, pave, plank, gravel, curb and otherwise improve and repair the highways, streets, avenues, lanes and alleys of the city; and for that purpose, and for defraying the expenses thereof, may divide the city into street districts.”

Section 3181 provides:

“Such part of the expenses of improving any street, lane, or alley, by grading, paving, planking, graveling, curbing, or otherwise, and of repairing the same as the council shall determine, may be paid from the general street fund or from the street district fund of the proper street district, or in part from each; or the whole, or such part of the expense of such improvement as the council shall determine, may be defrayed by special assessments upon lots and premises included in a special assessment district, to be constituted of the lands fronting upon that part of the street or alley so improved or proposed so to be; or constituted of lands fronting upon such improvement, and such other lands as in the opinion of the council may be benefited by the improvement.”

Section 3194 provides:

“ When the council shall determine to make any public improvement or repairs, and defray the whole or any part of the cost and expenses thereof by special assessment, they shall so declare by resolution, stating the improvement, and what part or proportion of the expenses thereof shall be paid by special assessment, and what part, if any, shall be appropriated from the general funds of the city, or from street district funds, and shall designate the district or lands and premises upon which the special assessment shall be levied.”

Section 3195 provides:

“Before ordering any public improvements or repairs, any part of the expenses of which is to be defrayed by special assessment, the council shall cause estimates of the expense thereof to be made, and also plats and diagrams, when practicable, of the work and of the locality to be improved, and deposit the same with the city clerk for public examination; and they shall give notice thereof and of the proposed improvement or work, and of the district to be assessed, by publication for two weeks at least in one of the newspapers of the city, and of the time when the council will meet and consider any objections thereto. Unless a majority of the persons to be assessed shall petition therefor no such improvement or work shall be ordered, except by the concurrence of two-thirds of the aldermen elect.”

Section 8196 provides:

“ The cost and expenses of any improvement which may be defrayed by special assessment shall include the costs of surveys, plans, assessments and costs of construction.”

By Act No. 136, Pub. Acts 1899, section 3194 was amended by prefixing thereto the following:

“When the owners of a majority of the lands liable to be assessed in any special assessment district, or part of the city which may be constituted a special assessment district, shall petition the council for any public improvement except sewers, the council shall order such improvement to be made. In other cases public improvements shall be made in the discretion of the council.”

It is the contention of the relator that this amendment withdrew wholly from the common council any authority to exercise any discretion in the matter of any improvement petitioned for by a majority of those subject to special assessment for the improvement, and that it practically vests in the owners of lands subject to such assessment the full legislative authority to determine what shall be the character of the improvement. This argument is built up upon a line of cases which hold that, where the charter of a city denies the authority to the common council to enter upon any public improvement for which a special assessment is to be made, except upon petition of a certain proportion of the property owners, the council may not depart substantially from the petition in its action, and impose upon the public a different character of improvement from that petitioned for; that such legislation gives to the owners the right to negative the imposition of a tax upon them for improvements. That is not the purpose of this legislation. The purpose of this legislation is to give to the owners of property the right to initiate improvements; and in view of the other provisions of the statute which have been retained, and which call for plans and specifications in much detail, and which provide for a review of such plans and specifications and objections by taxpayers, we cannot think it was the purpose of the legislature to withdraw wholly from the council any discretion in the matter. This view is strengthened by this consideration: It will be noticed that under the existing provisions of the statute — and they were not changed by the amendment — a large portion of this expense may be borne, and in the present case it is contended that it shall be borne, by the city at large. If this case were reversed, therefore — and the rule cannot be different from that in such suppositious case — we would have the anomaly of the owners of property abutting upon a street determining for the taxpayers at large of the city the character of an improvement which they were required to pay for. Such a construction is not to be accepted except upon a clear expression of legislative authority, and we think such expression is not to be found in the present act. The purpose of this amendment, as we construe it, was to set the council in motion in the matter of making a public improvement, and, if a majority of the owners liable to assessment for the improvement of a street petition for an improvement, it becomes the duty of the council then to act under the authority contained in the charter, and that authority includes the right to determine the character of the improve- - ment to be made.

The order of the circuit court is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.