text:
    NOWLIN LUMBER CO. v. WILSON.
    1. License — Privilege Conferred by Letter.
    Permission granted by letter to a lumber company to build a logging road across the writer’s land is a mere license, and not a lease, where exclusive possession is not purported to be given to any part of the premises, no rent is reserved, and no consideration paid or promised for the right conferred, which the letter calls a “privilege.”
    2. Easement — How Acquired.
    In order to establish an easement, where there is no claim to a prescriptive right, a valid grant must be shown.
    3. Estoppel — Land Titles — Statute of Frauds.
    Title to land cannot, in view of the statute of frauds, be acquired through estoppel.
    4. Same — Revocation of License.
    A gratuitous license to a lumber company to construct a logging road across the licensor’s land does not become irrevocable by the company’s expending money in reliance upon the expectation of a continuance of the license.
    Appeal from Clare; Dodds, J.
    Submitted January 24, 1899.
    Decided March 2, 1899.
    Bill by the Nowlin Lumber Company against Amelia B. Wilson to restrain interference with a logging railroad. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      C. W. Perry, for complainant.

      George J. Cummins (Roberts & Crane, of counsel), for defendant.
   Hooker, J.

.Complainant and the defendant own adjoining lots of timbered land, different parcels of the complainant’s land being separated by the land of the defendant. Previous to the time that the defendant acquired title to her property, the complainant desired to construct a logging railroad across the land now owned by the defendant, so that it might transport timber, which it proposed to cut upon one of its parcels, to its sawmill, which was* located upon the other tract. It therefore addressed the following letter to Mr. Spencer, who then owned the land now owned by the defendant:

' “Clarence, Mich., Sept. 8, 1897. “Mr. H. C. Spencer,
“Flint, Mich.
Dear Sir: I write you for permission to build a logging road across a 40 on your land, — the S. E. i of the N. W. J of 19, town 19, 5 west. What timber we have to cut will be cut into logs of usual length, and left on side of road. Trusting the above request will be agreeable to you, and that we may receive an early reply, we are, Yours truly,
“Nowlin Lumber Company.”

Mr. Spencer’s answer to this letter was not produced-upon the trial, but complainant’s witness testified that “it stated that those lands were for sale, and that he would not have a stick of timber cut, and forbade me to trespass it.” The correspondence continued as follows:

“Clarence, Mich., Sept. 11, 1897. “Mr. H. C. Spencer,
“Mint, Mich.
“Near Sir: Yours of the 9th inst. received. In regard to logging railroad across your land, I think you have a wrong impression in regard to the timber that we would cut. We do not need a wide track. It is easier for us to shun large trees than to cut and grub the stumps. We have graded 1% miles through standing timber, and I do not think we have had to cut to exceed 2,000 feet of standing trees. Inclosed please find plats of land owned by us. Examine same, and you will see that the favor we ask for is very beneficial, and might be asked for by either party. Trusting that you will give this matter a little careful consideration, and awaiting an early reply, we are,
“Yours truly,
“Nowlin Lumber Company.”
“Flint, Mich., Sept. 13, 1897.
“Nowlin Lumber Co.
Gentlemen: I have referred the matter of crossing my land to John B. Brown,, of. Harrison. I received a letter from him a few days ago, in which he advised giving you the privilege you ask. If you should cut timber, I would expect you to pay the value of it.
“Yours,
“H. C. Spencer.”
“Harrison, Mich., Sept. 15, 1897.
“Nowlin Lumber Co.
“Near Sir: I wrote to Spencer, of Flint, about your crossing his lands, and he says it’s all right, go ahead, and you may have time to take your lumber off. Mr. Spencer will expect the same privilege to cross your lands to cut his timber. Whatever timber you cut down on the right of way, cut it in logs, take them, and pay him for the timber. He sends me your letter.
“ Yours,
“John B. Brown.”

- The. complainant began clearing a way for the road two or three days after the correspondence ended, and had it partially built when it received a letter from the defendant, who acquired title by full warranty deed from Spencer on October 15, 1897. The letter is as follows:

“Harrison, Mich., Oct. 16, 1897.
“Nowlin Lumber Co.,
“Clarence, Mich.
Gentlemen: I have purchased all lands belonging to H. C. Spencer and W. H. Wilson'& Son in Greenwood township. I hereby notify you to stop operations on the same, also to stop crossing said lands with your railroad, and that, unless the same is immediately done, I shall be compelled to ask for an injunction to restrain you from doing so. Awaiting your early reply that you will do so, and not compel me to resort to this method, I remain,
“ Yours truly,
“Mrs. A. B. Wilson.”

This was followed by the commencement of this suit. The complainant appeals from a decree dismissing the bill of complaint.

The bill alleges that the complainant found it necessary in its business to construct and operate a logging railroad across these premises; that it thereupon conferred with Spencer; and that such conference “culminated in securing from him (Spencer), in writing, the right of way and privilege to go upon, cross, erect, build, construct, maintain, and operate such logging railroad upon the lands described;” that it expended large sums in doing this; that the defendant claims to have purchased the land from Spencer; that such purchase, if made, was with knowledge of its rights; that it was then in possession, occupancy, and control of the road; and that defendant has destroyed a portion of said road, and threatens to prevent the complainant from repairing, maintaining, or operating it. The prayer was for an injunction, and included general relief.

It is contended in the brief of counsel that the proofs show that the complainant acquired an interest in the nature of a lease of the ground for the purpose of a road, to be used as long as necessary, or at least for a reasonable time. It is claimed that it was in writing, signed by Spencer, and was for a valuable consideration. It-is said, further, that, if it should be held to be a license merely, it is an executed license, and that complainant has expended large sums of money, and that it is therefore ii'revocable.

The writing consists of the letters quoted, and, as the parties never met, the letters are not qualified in any way. Counsel cites no authority to sustain the claim that the complainant acquired a leasehold interest. No such claim is made in the bill, and the letters themselves do not indicate that a lease was designed. They do not purport to give exclusive possession of any part of the premises, which is essential to a lease. No rent is reserved, and no consideration was paid or promised for the alleged right, which the letters and bill call a “privilege.” See Druse v. Wheeler, 22 Mich. 439; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 252. We must therefore consider the question of license.

The defendant maintains that, at most, the letters show a gratuitous license, and that such is revocable at will, and that it was revoked by the deed from Spencer to her, and, at all events, by her letter of October 16th. Counsel for the complainant says that this is an executed license, and, therefore, that it is irrevocable. He also says that it is based upon a valuable consideration, and that complainant has been allowed to expend large sums of money upon the railroad, and that a revocation would be a fraud. It cannot be said that the complainant has an easement, because an easement must rest in prescription or grant. There is no claim to a prescriptive right, and these letters certainly constitute no grant — First, because they do not comply with the statute prescribing how interests in land shall be conveyed (2 How. Stat. § 5658); and, second, because they do not contain words indicative of a grant. For the latter reason, and the want of definiteness and of a consideration, as well as for want of proper pleading, there is no remedy in the nature of specific performance of a contract for an interest in land. In Clark v. Glid den, 60 Vt. 706, it is said: “It is clear that an interest in land cannot be conveyed by parol, nor can an easement be created except by deed; ” and the same doctrine will be found in most of the cases hereinafter cited.

Therefore the complainant must stand or fall upon the proposition that the license is irrevocable, because it has been permitted to expend money in reliance upon the expectation of a continuance of the license. This claim is supported by cases cited in the brief of counsel. Before discussing them, however, we may say that this claim rests upon the doctrine of estoppel, and therefore it is to be expected that those courts which have adopted the rule that title to land may be acquired through estoppel will apply the doctrine in cases similar to this. But such is not the law in this State, as we have frequently had occasion to say. The legislature has emphatically said that title to land must rest upon something more tangible than oral agreements or understandings, and it should require something more than a hard case to justify the adoption of a rule which would seriously jeopardize land titles. In Clark v. Glidden, supra, it was held that when A. allowed B. to lay a pipe, and take water from a spring, it became an irrevocable license during the existence of the pipe. This was distinctly put upon the ground of estoppel. In Ferguson v. Spencer, 127 Ind. 66, the supreme court of Indiana, following several other Indiana cases, and Clark v. Glidden, supra, applied the same doctrine in a similar case, and stated the following proposition, viz.: ‘ ‘ Where a license is coupled with an interest, or the licensee has done acts in pursuance of the license which create an equity in his favor, it cannot be revoked; ” citing East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248. But we understand that East Jersey Iron Co. v. Wright does not enunciate that doctrine. After stating that a license is revocable at pleasure even when money has been paid for it (page 253), and that the death of either party, or a conveyance of the land, will terminate it, the opinion in that case proceeds thus: “These rules do not, however, apply when an interest is coupled with the license, or an interest is created by an execution of the license,” — as where one sells a chattel situated upon his lands, and by express words authorizes the purchaser to enter and remove it; or where he gives the right to cut a tree, or to dig ore in his mine, and remove it, such license becomes irrevocable after the tree is cut or the ore is dug, and the licensee may enter and remove such tree or ore without becoming a trespasser. But he could not, after revocation, continue to cut other trees or dig more ore. Another Indiana case — i. e., Messick v. Railway Co., 128 Ind. 81 — applies the same rule to a license under which the railway built its road. This is at variance with our own cases of Wood v. Railroad Co., 90 Mich. 334, and Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4.

Counsel lays great stress upon the case of Stevens v. City of Muskegon, 111 Mich. 72; but in that case the majority of the court were of the opinion that something more than a license was created, and that it did not rest in parol. The subsequent'case of Minneapolis, etc., R. Co. v. Marble is at variance with counsel’s interpretation of Stevens v. City of Muskegon. A learned discussion of these subjects will be found in Morrill v. Mackman, 24 Mich. 284 (9 Am. Rep. 124).

As our own cases settle this question, it is 'unnecessary to discuss at length cases from other States. There is a want of harmony upon the subject; but it is confidently believed that the doctrine contended for exists only where the courts have permitted the doctrine of estoppel to override the statute of frauds. The following cases will be found interesting, and most, if not all, of them sustain the view adhered to in this State: East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248, 255; Prince v. Case, 10 Conn. 375 (27 Am. Dec. 675); Foot v. Northampton Co., 23 Conn. 214; Johnson v. Skillman, 29 Minn. 95 (43 Am. Rep. 192); Minneapolis Mill Co. v. Railway Co., 51 Minn. 304; Minneapolis, etc., R. Co. v. Railway Co., 58 Minn. 128; Cook v. Stearns, 11 Mass. 533; Ruggles v. Lesure, 24 Pick. 187; Stevens v. Stevens, 11 Metc. (Mass.) 251 (45 Am. Dec. 203); Hodgkins v. Farrington, 150 Mass. 19 (5 L. R. A. 209, 15 Am. St. Rep. 168); Blaisdell v. Railroad, 51 N. H. 483; Hazleton v. Putnam, 3 Chand. 117; Mumford v. Whitney, 15 Wend. 380 (30 Am. Dec. 60); Miller v. Railroad Co., 6 Hill, 61; Cronkhite v. Cronkhite, 94 N. Y. 323; Eckerson v. Crippen, 110 N. Y. 585 (1 L. R. A. 487). The last case, written by Mr. Justice Peckham, will show the present state of the law in New York; and the copious notes to the cases of Ricker v. Kelly, 10 Am. Dec. 38 (1 Greenl. 117), and Rerick v. Kern, 16 Am. Dec. 497 (14 Serg. & R. 267), contain numerous authorities not cited.

We have nó alternative but to affirm the decree, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J. Hooker, J.

license: Public Domain

text:
    CITY OF MARQUETTE v. WILKINSON.
    1. Trusts — Bank Deposits.
    City funds received on deposit by a banker, but redeposited by him in. other banks under an arrangement for sharing in the deposits, under which he receives from them the same interest that he pays the city, and agrees that they shall be withdrawn only to pay city orders, are held in trust for the city as against his assignee for creditors.
    2. Same — Matters within Knowledge op Deceased — Who are . Opposite Parties.
    W., a private banker, with whom city funds were deposited, agreed with two other banks that a part of the deposit should be placed with each, and should be withdrawn only for the purpose of paying city orders. With this understanding, certain officers of the two banks became sureties to the city for the deposit with W. Shortly before his death, W. made a general assignment for the benefit of creditors, and the deposits in tne two banks, being in his individual name, were claimed by the assignee as assets of the estate. The city, upon a bill filed by it, to which the banks and the assignee] were made parties, to establish its right to the deposits as trust funds, was permitted to introduce the testimony of the bondsmen to show the arrangement under which the redeposits were made. Held (per Grant, C. J., and Moore, J.), that the contingent liability of the bondsmen did not render them opposite parties, incompetent under 3 How. Stat. § 7545, to testify to matters equally within the knowledge of deceased.
    3. Same — Knowledge op Beneficiary.
    A cestui que trust is not debarred from enforcing the trust through ignorance of it at the time of its creation, but may enforce it whenever he ascertains its existence.
    4. Same — Restraint of Competition — Public Policy.
    To prevent competition in securing a deposit of city funds, a private banker agreed with two other banks that, in consideration of their offering a lower rate of interest than he, the deposit should be equally distributed among the three, and that he would not withdraw any of it from them except for the purpose of paying city orders. Held, that the invalidity of the agreement on grounds of public policy could not be set up to defeat the city’s claim to the funds, since the city alone had a right to complain of it.
    5. Same — Pursuit of Fund — Security.
    A cestui que trust may pursue the trust fund regardless of any security he may have by way of bonds.
    6. Contracts — Assignability.
    A contract between a city and an individual by which the latter is to receive and safely keep the funds of the former, to pay them out on drafts of the city, and to return the balance on the expiration of the contract, is a, personal contract, and not assignable.
    Appeal from Marquette; Stone, J.
    Submitted November 18, 1898.
    Decided March 6, 1899.
    Petition by the city of Marquette against Edwin C. Wilkinson and Albert E. Miller, assignees of James M. Wilkinson, deceased, the First National Bank of Marquette, and the Marquette County Savings Bank, to reach funds deposited by decedent in defendant banks, as being trust funds, to which petitioner is entitled as against decedent's general creditors. From a decree for petitioner, defendant assignees appeal.
    Affirmed.
    James M. Wilkinson, deceased, was a private banker ' in the city of Marquette. Shortly before his death, and on January 22, 1898, he made a general assignment for the benefit of his creditors to the defendants Edwin C. Wilkinson and Albert E. Miller. The assignment contained no schedule of assets.
    On April 29, 1897, the petitioner, the city of Marquette, entered into an agreement with Mr. Wilkinson for the care and custody of its funds upon the execution and delivery of a bond in the sum of $75,000, with sureties, to be approved by the common council. The material part of this agreement is as follows:
    “The said James M. Wilkinson agrees to receive and safely keep all such moneys and funds of said city as may be offered or deposited by said city and the treasurer thereof, and to reimburse and pay the same to said city, the treasurer thereof, his successor in office, or whoever may be lawfully entitled to receive the same, whenever called for; and to pay interest on such moneys and funds so deposited with him at the rate of two per cent, per annum on all daily balances which shall at the close of business each day equal or exceed the sum of two thousand dollars ($2,000), but no interest to be paid on any balance for any day in which said balance shall at any time fall below the sum of $2,000; all said interest to be paid on the first day of July next, and quarter-yearly thereafter, or at any other time when the account may be closed. It is mutually agreed by and between the respective parties Tiereto that said James M. Wilkinson shall at all times keep a true and just account of all moneys and funds ■deposited by the said city and the treasurer thereof, as aforesaid, and render to said treasurer monthly statements thereof; and that the said James M. Wilkinson shall at all times honor and pay all proper draffs and checks of the said city and the treasurer thereof, as aforesaid, to the amount of the moneys and funds so deposited with him as aforesaid.”
    A bond was executed and approved by the common council, signed by C. H. Call, S. R. Kaufman, E. H. Towar, and A. Matthews as sureties. Messrs. Call and Kaufman were officers of the defendant sayings bank, and E. H. Towar an officer of the defendant national bank. The bond referred to the contract, and was conditioned that Wilkinson should “ well and truly pay, or cause to be paid, on demand, to said city corporation, or proper officer thereof, or person entitled thereto, all such sums of money as shall be deposited with him by said city treasurer.” The city and Mr. Wilkinson had made similar contracts for the years 1895 and 1896.
    The three banks had entered into an agreement by which all real competition for the keeping of these funds was prevented. Each bank put in a bid with the understanding that Wilkinson should bid 2 per cent, as interest for the funds deposited, that the other banks would make lower bids, and that he should deposit one-third of the funds in each of the other banks, and that each bank should pay him % per cent, on such deposits, — the same which he paid the city. It was also agreed that no funds should be drawn from these two banks except to pay city orders. The arrangement between Wilkinson and the banks was carried out in good faith, and at the date of the assignment there was on deposit in each of said banks the sum of $10,000. Each bank kept the account in the name of James M. Wilkinson. When Mr. Wilkinson applied to Mr. Call and the others to sign his bond, they objected. He then stated to them his agreement with the other banks, and that the money so deposited would reduce their liability to one-third of the city funds, the money that was to be retained in his own bank. It was upon this assurance, and the understanding that it would protect the sureties of the amount so deposited, that the bondsmen executed the bond. ' Mr. Wilkinson honestly and faithfully kept his agreement, and drew from these banks only such funds as were necessary to pay city orders, simultaneously drawing the like amount from each bank.
    It appears from the finding and opinion of the circuit judge that Mr. Wilkinson’s liabilities at the date of the assignment were $130,000; that his assets were scheduled at something over $200,000, and appraised at about $146,000. It is insisted on the part of the assignees that these funds in question are a part of the general assets of Mr. Wilkinson’s estate, and should be divided equally among his creditors. It is the contention of the city that they are trust funds; that .they were deposited as such, and therefore belonged to the city. The defendant banks admit their obligation to pay the funds in their possession, but refused to pay them over except upon an order of the court of chancery, insisting that the assignees are not empowered to carry out the trust except as so authorized. The assignees instituted suits at law against the banks for the recovery of these funds, and recovered a judgment against the First National Bank for the money in its possession. At this stage in the proceedings this petition in chancery was filed, and further proceedings in the suits at law restrained. The object of this suit is to have the character of these funds declared, and the right thereto determined. The case was heard upon pleadings and proofs taken in open court, and decree entered for the petitioner, declaring that they were trust funds, and that the petitioner was entitled to them.

      George P. Brown (Charles B. Brown, of counsel), for petitioner.

      A. E. Miller (A. B. Eldredge, of counsel), for defendant assignees.

      Clark & Pearl, for defendant national bank.

      George Hayden, for defendant savings bank.
   Grant, C. J.

(after stating the facts). Two questions are presented:

1. Five witnesses testified to the arrangement between Mr. Wilkinson and the banks for the deposit of these funds. Three are the bondsmen. It is insisted that their testimony is incompetent under 3 How. Stat. § 7545, upon the theory that they are the real parties in interest, and are, therefore, excluded from testifying to matters equally within the knowledge of the deceased. Who are the real parties to this controversy, so as to make them “opposite parties,” within the meaning of the statute? The estate of Mr. Wilkinson is not interested, because it is not concerned in the distribution of the fund. It cannot be depleted by establishing this agreement. Neither will it be increased thereby. The assignees, in any event, would receive this money only to pay it out, either to the general creditors or to the cestui que trust. They are not, therefore, opposite parties, within the meaning of the statute. The banks are not interested, because, in any event, they must pay the money. They are, therefore, not opposite parties. The bondsmen are only contingently interested. They may or may not become liable. Should the assets be sufficient to pay all the liabilities, — and there is nothing upon this record to show that they are not,- — no liability will attach. In any event, they are only liable for such deficit as may remain after the distribution of the entire estate among the creditors. It is true, they might be sued upon the bond before the estate is distributed, and in that event they would be subrogated to the rights of the city in the estate. This is a controversy between the creditors alone, to wit, the city and the other creditors; and the reason upon which the statute is founded, excluding testimony, does not apply. McClintock's Appeal, 58 Mich. 152; Brown v. Bell, Id. 58. The contingent liability of the bondsmen does not render them opposite parties, within the meaning of the statute, or disqualify them from testifying. Schofield v. Walker, Id. 96; Latourette v. McKeon, 104 Mich. 156.

2. Are these trust funds? The character of the fund in Wilkinson’s bank, as between him and the city, is not here in controversy. Nor is it material that the city had no knowledge of the arrangement with the other banks. Cestuis que trustent are not debarred from enforcing a trust through ignorance of it,at the time of its creation, but may enforce it whenever they ascertain its existence. Martin v. Funk, 75 N. Y. 134 (31 Am. Rep. 446).-

It is urged that this agreement is void as against public policy. If this be granted, neither Wilkinson, nor the banks, nor the bondsmen could take advantage of it. The city alone could rescind it on this account. It has not chosen to do so, and no other party can complain.

It is also clear that Wilkinson’s assignees have no other or better title to these funds than did Mr. Wilkinson iu his lifetime. Mr. Wilkinson had deposited these funds with the other banks as the city’s money, to be paid out only for city purposes. They were not regular deposits to be drawn upon generally by Wilkinson, but were special deposits to be drawn upon for a special object. The funds had passed beyond Wilkinson’s control, except under the terms of the agreement. Had Mr. Wilkinson given his check upon either of these banks to pay his personal debts, would the banks have been legally bound to pay ? If the banks had been garnished for the personal debts of Wilkinson, could the garnishee suit be sustained ? To so hold would he in direct violation of the express terms of the agreement, and defeat the very purpose for the deposit of these funds. If it be granted that the main purpose was to protect the bondsmen, the city is not thereby estopped to seek the fund thus deposited, and compelled to look to the bondsmen. Suppose the bondsmen had become irresponsible. The city would certainly then have a direct interest in the funds. It is, however, elementary that the cestui que trust may pursue his funds regardless of any security he may have by way of bonds.

To apply another test, suppose these bondsmen had declined to sign the bond unless Mr. Wilkinson would deposit with them two-thirds of the city funds, to be> kept by them, and paid out only on his check or order to pay city liabilities. Here the main purpose undoubtedly would be to protect the bondsmen. Upon an assignment for the benefit of the creditors, would the bondsmen be compelled to return the moneys to Mr. Wilkinson’s assignees, to be distributed among the general creditors, rather than to devote them to the special purpose for which they were deposited ? If not, then certainly there is no difference in principle when the funds are deposited with a third person to secure the bondsmen. Wilkinson, the banks, and the bondsmen saw fit to agree that, as fast as Wilkinson received the city’s moneys, two-thirds thereof should be deposited with the defendant banks, first, to preserve them for the benefit of the city, and, second, to secure the bondsmen. . The transaction was legitimate, and impressed upon the funds the character of a trust. The banks were under obligation, both moral and legal, to hold the" funds, and pay them out for the specific purpose agreed upon.

We think our conclusion is clearly within the principle established by the following decisions: Sherwood v. Central Mich. Savings Bank, 103 Mich. 109; Wallace v. Stone, 107 Mich. 190; Sunderlin v. Mecosta County Savings Bank, 116 Mich. 281, and authorities there cited; Cleveland, etc., R. Co. v. Hawkins, 79 Fed. 29; Montagu v. Pacific Bank, 81 Fed. 602; Libby v. Hopkinsf 104 U. S. 303; People v. City Bank, 96 N. Y. 32; Martin v. Funk, supra; In re Gaffney’s Estate,. 146 Pa. St. 49; Davis v. Ney, 125 Mass. 590 (28 Am. Rep. 272); Reiff v. Horst, 52 Md. 255.

The death of Wilkinson terminated the agreement with the city. It was a personal contract, and nqt assignable. The court of chancery has jurisdiction to determine the rights of the parties, • and direct the completion of the trust.

Decree affirmed, with costs.

Moore, J., concurred with Grant, C. J.

Hooker, J.

We concur in the conclusion reached by the Chief Justice. We are of the opinion that the evidence, aside from that given by the bondsmen, clearly establishes the trust. We do not, therefore, pass upon the question whether the testimony of these bondsmen was admissible under the stafute.

Montgomery and Long, JJ., concurred with Hooker, J.


author: Moore, J.

text:
    BORDWELL v. SAGINAW CIRCUIT JUDGE.
    1. Probate Courts — Allowances to Widow — Non appeal able
    Order.
    An order of the probate court allowing to one claiming to be the widow of decedent the furniture and personal property mentioned in 2 How. Stat. § 5847, subd. 1, and a weekly sum for her support as provided for in subdivision 2, is not appeal-able, although it is disputed that claimant is the widow of the deceased.
    2. Same — Res Judioata.
    In such case, the determination by the court that claimant is such widow is conclusive only so far as it relates to the allowances made by suchjorder, and is not res judioata as to her right as widow to a distributive share of the estate.

      Mandamus by Frankie Howe Bordwell to compel Byron A. Snow, circuit judge of Saginaw county, to dismiss an appeal from probate court.
    Submitted November 22, 1898.
    Writ granted March 6, 1899.

      John F. O’Keefe, for relator.

      James H. Davitt and John A. McKay, for respondent.-
   Moore, J.

Warren Bordwell died, intestate, in December, 1897. Later an administrator of his estate was appointed. In June, 1898, the relator filed a petition in the probate court, alleging she was the widow of Mr. Bordwell, and asking for an allowance for her support, and for the personal property allowed the widow by the statute. The heirs at law disputed the claim of the relator that she was the widow of Mr. Bordwell. After a hearing, the probate judge determined she was the widow of Mr. Bordwell, and allowed her $12 a week for her support, and the household furniture and personal property mentioned in subdivision 1, § 5847, 2 How. Stat. From this order the heirs at law appealed to the circuit court, for the purpose of having a trial before a jury of the question of whether the relator was the widow of Mr. Bordwell or not. The relator moved in the circuit court to have the appeal dismissed, upon the ground that the order was not appealable, which motion was overruled. This is a proceeding to review the action of the circuit judge.

It is claimed on the part of the heirs at law that section 6779, 2 How. Stat., gives the right of appeal in cases of this character; citing the case of Peet v. Peet, 52 Mich. 464. The question of whether the order was appeal-able was not raised or discussed in that case, and' it does not aid us in the solution of the question involved here. The question has been before this court repeatedly whether an order of the probate court making the allowances provided by subdivision 2 of section 5847 is appealable, and it has been uniformly held the order was not appealable. People, ex rel. Curtis, v. Cass Probate Judge, 35 Mich. 220; Walker v. Hull, Id. 488; Freeman v. Washtenaw Probate Judge, 79 Mich. 390; North v. Tuscola Probate Judge, 84 Mich. 69; In re Power's Estate, 92 Mich. 106; Bacon v. Kent Probate Judge, 100 Mich. 183. The statute does not in terms give the right of appeal from these allowances, and the cases hold that to so construe the statute as to give the right of appeal would deprive the widow of her support, and perhaps the support of a family of small children, at a time when they needed it most, — a result not contemplated by the statute, and not to be desired.

It is said that, while an appeal will not lie from the weekly allowance granted the widow, it should lie as to that part of the order making her the allowances provided in subdivision l, and that to do otherwise is to allow her to deplete the estate. Section 5873, 2 How. Stat., provides that the allowances of personal property made to the widow shall not be considered assets in the hands of the administrator or executor. To deprive the widow of the household furniture, and other personal property mentioned in the statute as belonging to her, during the settlement of the estate, .would be quite as great a hardship as to deprive her of her allowancd for support, and the estate would no more be depleted in the one instance than in the other.

It is urged that, in the cases cited, there was no dispute whether the person claiming the allowance was the widow or not, and that, when the fact is disputed, there should be a right of appeal, because, if it was decided the claimant was not the widow, there would be no way to get the allowances back. Such a case cannot, in fact, often occur. When it does, doubtless a hardship would result; but not more so than where allowances are made pending divorce proceedings which are instituted by one not the wife. It is better that a hardship should occur in the rare cases where a claim is made by a person not entitled to make the claim than to make it possible to prevent the many widows whose right is unquestioned from having their allowances during the pendency of the litigation. In Lorimer v. Wayne Circuit Judge, McGrath, Mand. Cas. No. 136, the relator claimed to be the widow of Thomas Lorimer, deceased. She sought to appeal from an order refusing her an allowance out of the estate. This was refused, for the reason, among others, that the order of the probate court was not appealable. The question was again presented in Lorimer v. Wayne Circuit Judge, 116 Mich. 682, where the relator had instituted proceedings under 3 How. Stat. § 5992a et seq., to have it decided who were the heirs of the Lorimer estate. In that proceeding, the probate judge decided the petitioner was not the widow of Mr. Lorimer. An appeal was taken to the circuit.court, counsel claiming that section 6779 authorized the appeal. The appeal was dismissed, upon the ground, among others, that the order was not appealable. In this court the ruling of the court below was affirmed. The order of the probate court in this case as to allowances is not appealable. His determination that relator is the widow of Mr. Bordwell is conclusive only so far as it relates to the allowances made to her pending the litigation, and is not res adjudicata as to her right as widow to the distributive share of the estate to which the widow is entitled.

The order may issue dismissing the appeal, with costs of this court.

Grant, C. J., Montgomery and Long, JJ., concurred. Hooker, J., did not sit.


author: Grant, C. J.

text:
    BELLOWS v. CRANE LUMBER CO.
    1. Contracts — Action por Breach — Evidence.
    In an action to recover damages for the 'defendant’s failure to sort, within a reasonable time, logs driven by it under contract with the plaintiff, the latter may be asked if the defendant drove and sorted the logs specified in the contract, as against an objection that the question calls for the expression of an opinion, and, by combining the contracts to drive and sort, tends to confuse the jury, where the details of the transaction are fully elicited.
    2. Appeal — Ground op Objection — Review.
    Alleged error in permitting a question to a witness, over an objection, cannot be considered on appeal, where no reason for the objection was stated.
    3. Trial — Leading Questions — Discretion op Court.
    The exclusion of a question objected to as leading is within the discretion of the trial court.

      4. Contracts — Evidence.
    A completed contract to drive logs is competent evidence in an action to recover damages for the defendant’s failure to sort them within a reasonable time, under another contract, when admitted for the sole purpose of showing whether the sorting was completed within a reasonable time.
    Error to Benzie; Aldrich, J.
    Submitted January 5, 1899.
    Decided March 6, 1899.

      Assumpsit by Edwin Bellows and Adelbert Bellows against the Crane Lumber Company for the breach of a contract to' assort logs. From -a judgment for plaintiffs, defendant brings error.
    Affirmed.
    Plaintiffs and defendant were engaged in lumbering. Plaintiffs had a mill on Betsie lake.- One Butler was also engaged in lumbering at the same place. The logs of these three parties came down Betsie river. On March 18, 1895, plaintiffs and defendant made an agreement by which the latter agreed to drive these logs, and deliver them below what was known as “Lewis Bridge.” On April 16, 1895, they also made another contract, by which the defendant agreed to assort all the logs of plaintiffs and of Butler. No time was fixed yvken this work under the second contract was to be finished. The logs were driven as agreed, but a portion of them were not assorted during the season of 1895, and not until the season of 1896. Plaintiffs brought suit for damages for nonperformance of the latter contract, and recovered a verdict of $500.

      Pratt & Davis and D. G. F. Warner, for appellant.

      George Whitbeck and Smurthwaite & Fowler, for appellees.
   Grant, C. J.

{after stating the facts). 1. The first assignments of error relate to the admissibility of testimony. One of the plaintiffs was asked, “Did the defendant drive and sort all of your'logs specified in these contracts ? ” It is urged that the question calls for an opinion, and not for a statement of fact; that it combined both contracts, and confused the jury; and that the witness was called upon to decide the issue, since the contract for sorting the logs specified no time. "We think there is no force in these objections. The question clearly called for a statement of fact, and the examination and cross-examination elicited all the facts in regard to the transaction, so that there was no possibility of the jury being misled or confused.

In objecting to another question, no reason was stated. Under repeated decisions, we cannot, therefore, consider it.

Objection to another question was sustained because it was leading. This was a matter entirely within the discretion of the court, and we see no abuse of that discretion.

2. The contract for driving was completed, and counsel for the defendant objected to the admission of this contract, and to all testimony relating to it, and at the close of the testimony moved to strike out all such testimony,, which motion was denied. This contract was admitted and considered for the sole purpose of showing whether the sorting was completed within a reasonable time. It was upon this theory that the case was submitted to the jury. It was competent for that purpose, and upon no-theory could it have been prejudicial to the defendant.

3. The bill of particulars contained various items of damages, but only one was submitted to the jury, viz., the alleged depreciation in the value of lumber from the fall' of 1895 to the spring of 1896, when the logs were delivered. There was evidence to sustain this claim, and it was submitted to the jury under fair and impartial instructions.

We find no error upon the record, and the judgment is affirmed.

The other Justices cohcurred.


author: Long, J.

text:
    VILLAGE OF L’ANSE v. FIRE ASSOCIATION OF PHILADELPHIA.
    Fire Insurance — Location of Property.
    A policy of insurance on a steam fire-engine, hose-pipe, and hose-cart, while located and contained in the fire-engine house, “and not elsewhere,” does not cover such property while being used in attempting to extinguish a fire several hundred feet from that building.

    Error to Baraga; Haire, J., presiding.
    Submitted January 5, 1899.
    Decided March 6, 1899.

      Assumpsit by the village of L’Anse against the Fire Association of Philadelphia on a policy of insurance. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Philip R. McKernan (Prank E. Robson, of counsel), for appellant.

      Gray & Looney, for appellee.

       The location of movable property, as affecting fire insurance thereon, is the subject of a note to Benton v. Insurance Co., (Mich.) as reported in 26 L. R. A. 237.

   Long, J.

On April 9, 1896, the defendant issued its policy of insurance to the plaintiff for the term of one year from April 19, 1896. The policy provides that the association does—

“ Insure village of L’Anse * * * against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $1,500, to the following described property, while located and contained as described herein, and not elsewhere, to wit:
“$400 — On the two-story frame, shingled roof, fire-engine house, situate detached 70 feet, in the village of L’Anse, Baraga county, Michigan.
“$700 — On steam fire-engine and heater attached.
“$200 — On hose and hose-pipe.
“$300 — On hose-cart, tools, and machinery not enumerated, — all contained in above-described building.
“$1)500 — Other concurrent insurance noted.”

Then follows the usual Michigan form of standard policy.

On May 9, 1896, the said steam fire-engine, hose, hosepipe, and hose-cart, as covered by the policy, were burned and destroyed by fife. None of the above property was in the building at the time it was burned, but was being used in an attempt to extinguish a fire some 200 to 800 feet from the building. The defendant refused to pay the damages claimed by the plaintiff for the loss of the property, on the ground that, under the policy, it was insured only while contained in the building mentioned and described in the policy, and not elsewhere. The action brought to recover on the policy was tried before the court without a jury, and the court found in favor of defendant’s contention, and thereupon entered judgment in its favor. Plaintiff brings error.

It is admitted by counsel for plaintiff that the case involves but the one question: What is the proper construction of the words in the policy, “ while located and contained as described herein, and not elsewhere?” It is argued by counsel that the usual purpose and use by the plaintiff of a fire-engine, hose, hose-cart, and other appliances described in the policy would be to extinguish fires in the village,.and that, in order to be so used, it would be, as occasion might require, temporarily out of the engine-house, which would be its place of deposit when not in use; that such use must have been contemplated by both parties to the contract; and that such use must be presumed to have been taken into consideration by the defendant in fixing the rate of premium. It is said by counsel that the words “contained in,” etc., and like expressions, were in use before the adoption of the .standard form of policy, and had a well-settled meaning, and, if applied to property the natural use of which required it to be kept in one place, the insurance was lost if the property was removed to some other place, but if, however, the property was of a sort that the natural use of it required a temporary removal from the place designated in the policy, and while so temporarily absent was destroyed, it was covered by the policy; that the words “contained in,” etc., were of further description, and indicated the place of deposit when the property was not temporarily absent. It is therefore contended that, in framing the standard policy, the intention was to express and adopt this construction. On the other hand, counsel for the defendant claim that, even under the old forms of policy, the insurance did not continue while the property was removed from its place of deposit, where the limitations were as contained in this policy, to wit, “while located and contained as described herein, and not elsewhere.”

We think the cases cited by counsel for plaintiff clearly distinguishable from the policy in suit. Here 'the words are plain and unambiguous, and are not susceptible of construction other than that which the words themselves import. “While located and contained as described herein, and not elsewhere,” means that the policy covered the property only while in that particular building, and did not cover it while it was anywhere else.

In Green v. Insurance Co., 91 Iowa, 615, the words of the policy were, “while contáined in the two-story brick and frame dwelling-house,” etc. The court, in speaking of other cases to which its attention had been called by counsel for plaintiff, said:

“This contract is widely different from those in the cases cited. The evidence shows that the property was kept sometimes in the chapel and sometimes in the house, and parts of it used in both places; and if we assume that the parties, when making the contract, knew of this, we have additional reason for limiting the liability to losses while in the house. It is sufficient to say that the liability is thus limited, and the courts have no right to extend it.”

This case was followed by Lakings v. Insurance Co., 94 Iowa, 476 (28 L. R. A. 70).

In Bahr v. Insurance Co., 80 Hun, 309, the limitation in the policy was, “ while located as described herein, and not elsewhere, to wit, * * * while contained in the frame building occupied as a wheelwright shop,” etc. The carriage was burned in a livery-stable' a block and a half away from there. Judgment for plaintiff was had below, and the court said: “This judgment cannot stand. The location of the insured property was a warranty, a breach of which avoided the policy.”

This rule was recognized by this court in Wildey v. Insurance Co., 52 Mich. 446, and English v. Insurance Co., 55 Mich. 273 (54 Am. Rep. 377).

The court below was not in error in entering judgment in favor of defendant. That judgment must be affirmed.

The other Justices concurred.


text:
    AUDITOR GENERAL v. WOMEN’S TEMPERANCE ASSOCIATION OF MANISTEE.
    Taxes — Exemptions—Library Buildings — Sole Occupancy. • A building erected by an association incorporated for the maintenance of a free public reading room and library is not occupied by it “solely ” for such purpose, within the meaning of Act No. 206, Pub. - Acts 1893, § ,7, subd. 4, conferring in such case exemption from taxation, where the premises were leased to and used by a social club on condition that it maintain such room and library, and a part of the building was sublet to a military organization.
    Appeal from Manistee; McMahon, J.
    Submitted January 6, 1899.
    Decided March 6, 1899.
    Petition by Roscoe D. Dix, auditor general, for the sale -of lands delinquent for taxes: On objections filed by the "Women’s Temperance Association of Manistee. From a decree for defendant, petitioner appeals.
    Reversed.

      Frank L. Fowler, Prosecuting Attorney, for petitioner.

      Dovel & Smith, for defendant.
   Long, J.

The defendant is a corporation organized under Act No. 356, Laws 1865, being an act authorizing the formation of corporations for literary and scientific purposes. The articles of incorporation were executed in March, 1874, and the corporation formed “for the purpose of furnishing a free public reading room and library.” For the purpose of carrying this object into effect, certain Teal estate was donated, consisting of two lots in the city ■of Manistee, and, with individual contributions, a two-story building was erected thereon, and dedicated to the purpose of maintaining and supporting a free public reading room and library, which has been continued up to the present time. The only means the association had for maintaining and supporting the reading room was derived from the second story, which was used for public -entertainments and social gatherings. In 1888 the expense of maintaining the reading room exceeded the income from the building by $275, which the association was unable to pay. To meet this indebtedness, and insure the continuance of the free reading room and library, the association -entered into a lease with the Olympian Club of that city, for a term of 99 years, upon the condition, among others, that the club should keep a public reading room similar to the one theretofore kept by the Women’s Temperance Association. Since the lease of the building, the Women’s Temperance Association has had no control over, or occupancy of, said building. At the time of the assessment of the taxes now in question, and for several years previous thereto, the upper floor was rented to the Manistee Light Guards, one of the military companies of the State, and the rent was paid to the Olympian Club. Half of the first floor was occupied as a reading room, and the other half was used by the club for its own members, and contained pool and billiard tables, etc. The basement contained the heating apparatus for the whole building. The lease was silent as to taxes. The taxes were assessed for the year 1895, and the claim was made in the court below, by the Women’s Temperance Association, that the premises are exempt from taxation under the statute. The court so held, and set the taxes aside. The auditor general has appealed. .

Subdivision 4, § 7, Act No. 206, Pub. Acts 1893, under which the taxes were assessed, provides: ‘ ‘ Such real estate as shall be owned and occupied by library, benevolent, charitable, educational, and scientific institutions, incorporated under the laws of this State, with the buildings and other property thereon, while occupied by them solely for the purposes for which they were incorporated,” shall .be exempt from taxation. The only question is whether the building was occupied by the Women’s Temperance Association solely for the purpose for which it was incorporated, within the meaning of this act.

In Detroit Young Men’s Soc. v. Mayor, etc., of Detroit, 3 Mich. 172, it appeared that the tax law (Act No. 86, Laws 1853)’’provided that “the personal property of all library, benevolent, charitable, and scientific institutions incorporated within this State, and such real estate belonging to such institutions as shall actually be occupied by them for the purposes for which they were incorporated,” should be exempt from taxation. The plaintiff was incorporated “for the purposes of moral and intellectual improvement.” It was said:

“Exemption laws of this character, though beneficent in their objects, are in derogation of equal rights, and must be construed strictly. * * * Nothing can be holden to be exempt 'by implication. Did the plaintiff actually occupy the whole of the property taxed? Clearly not. It follows, therefore, that it is not all exempt. * * * The occupation contemplated by the statute must be exclusive.”

It appeared in that case that the plaintiff occupied the upper rooms only, while the cellars, first story, and offices of its building had been rented to others.

In Purvis v. Traill, 3 Exch. 344, it appeared that the lecture hall and other rooms occupied for the purposes of the institution were occasionally rented for other purposes. It was held, under Stat. 6 & 7 Vict. c. 36, § 1, which is substantially like our statute, though not containing the words “solely”‘or “exclusively,” that the property was subject to taxation. Under a similar statute in Iowa, where the word “ solely ” was used in the exemption clause, it was held that a building belonging to a benevolent society, and leased for pecuniary profit, was not exempt, although the fund from which it was built might have been exempt. The court said: “The' property being leased for business purposes, and an income obtained therefrom, its status as taxable property is thereby fixed.” Fort Des Moines Lodge v. County of Polls, 56 Iowa, 34.

We áre of the opinion that this property was not occupied by the defendant “solely for the purposes for which it was incorporated,” within the meaning of the statute, and that the court was in error in so holding. The decree below must be reversed, and a decree entered here subjecting the property to the lien of these taxes, with costs of both courts in favor of the auditor general.

The other Justices concurred.


text:
    ANTI-KALSOMINE CO. v. KENT CIRCUIT JUDGE.
    1. Bill op Particulars — Action op Tort.
    In a case where, if recovery is had, it must be for specific amounts paid to specific parties or due under contract, and concerning which the declaration contains only general allegations, a bill of particulars is demandable, though the declaration, as a whole, sounds not in assumpsit, but in tort.
    2. Same — Pleading and Proop.
    One alleging fraudulent interference with his business, whereby customers of his were discouraged through unfair and arbitrary treatment, and salesmen were employed to entice away his customers, cannot be required to give a bill of particulars setting forth the names of such customers and salesmen, but, in refusing to do so, he assumes the risk of his declaration’s not being sufficiently specific to admit proof of the damages sought to be recovered.

      Mandamus by the Anti-Kalsomine Company to compel William E. Grove, circuit judge of Kent county, to grant a motion for a bill of particulars.
    Submitted February 21, 1899.
    Writ granted March 6, 1899.
    The declaration in this case is given in full in Church v. Anti-Kalsomine Co., 118 Mich. 219. After that decision was rendered, defendant demanded a bill of particulars of the plaintiff’s claim. Plaintiff refused to furnish it, and the circuit court refused to order it. The object of this proceeding is to compel the plaintiff to furnish it.

      T. J. O’Brien (Fletcher & Wanty, of counsel), for relator.

      Hyde, Earle & Thornton, for respondent.
   Grant, C. J.

The court refused to order a bill of particulars, upon the ground that this was an action of tort, and no bill of particulars is required, — basing its conclusion upon People v. Marquette Circuit Judge, 39 Mich. 437; Kehrig v. Peters, 41 Mich. 478; Shadock v. Plank-Road Co., 79 Mich. 7. It will be observed that the declarations in these three cases are grounded wholly upon torts,.and contain nothing sounding in assumpsit.. People v. Marquette Circuit Judge was an action of trespass. Kehrig v. Peters was an action by a wife, under the liquor law, for damages caused by the sale of intoxicating liquors to her husband. The demand for a bill of particulars was denied because the suit was “an action on the case for consequential injuries.” Shadock v. Plank-Road Co. was an action of negligence for injuries alleged to have been caused by a defective highway. The clause of the declaration in the last case, under which defendant asked for a bill of particulars, was that “plaintiff was hurt, bruised, and wounded.” The court held that defendant was not entitled to any bill of particulars. It is significant, however, that plaintiff took his risk in relying upon so general a statement, and upon the trial was limited to the natural meaning of the words used. See 79 Mich. 11. The court therefore held that evidence of fractures of the shoulder, arm, and hand, and a temporary strain of the hip, was inadmissible. The court, speaking through Justice Campbell, said:

“The object of the allegations in the declaration is to give defendant information of facts which were within plaintiff’s knowledge, and, if plaintiff meant to prove them, he was bound to allege them. It would be impossible, otherwise, to be prepared to meet the evidence connecting plaintiff’s injuries with the accident, or showing their nature and extent, or their consequences on plaintiff’s physical condition, or the measures taken to remedy or help them.”

When a declaration, whether in tort or in assumpsit, declares specially, and sets out a cause of action, courts will not permit the defendant to be taken by surprise, and will therefore limit a plaintiff, in his proof, to the natural results of his allegations. The declaration in this case is special, but many of tbe allegations are general. "We do not construe tbe above cases to mean that in no action'of tort can a bill of particulars be demanded. Some of tbe counts in this declaration sound in assumpsit, and assumpsit would clearly lie for them. The necessity for a bill of particulars is the same whether the action be in tort or in assumpsit. It is alleged in paragraph 18 that defendant—

“Fraudulently credited to the said plaster business large sums of money earned by said defendant in its business other than said plaster business, * * * and fraudulently paid out of its funds large sums of money, to wit, $5,000, for the benefit of said A. D. Rathbone, president, and J. L. Hamilton, vice-president, of the Diamond Wall-Finish Company, without consideration or compensation, and fraudulently expended large sums of money, to wit, $40,000, in the maintenance of said Diamond Wall-Finish Company as its competitor.”

So, in paragraph 19, it is charged that plaintiff expended large sums of money for litigation in England, which defendant has refused to pay. So, in paragraph 20, it is charged that defendant has refused to pay said plaintiff his stipulated salary. ■

The above statements are sufficient to show the precise point at issue. The above decisions cannot be construed to be applicable to a case like this, where, if recovery is-had, it must be for specific amounts, paid to specific parties or due under contract, and as to which the declaration contáins only the most general allegations. No argument or citation of authority is needed to show the propriety and fairness in notifying the defendant what he is called upon to meet.

While there would seem to be much reason in requiring the plaintiff to give the -names of the customers of the Anti-Kalsomine Company claimed to have been discouraged by unfair and arbitrary treatment, and the names of the salesmen who were alleged to have been instructed to-obtain for the Diamond Wall-Finish Company the customers of the Anti-Kalsomine Company, and other like statements, yet we think this comes within the decision of People v. Marquette Circuit Judge, supra; and if, upon the trial, testimony is offered upon these allegations, the court must determine whether the damages sought to be proved are within the declaration, under the rule established in Shadock v. Plank-Road Co., supra.

The writ must issue, with costs against the plaintiff, Church.

The other Justices concurred.


author: Per Curiam.

text:
    CHURCH v. ANTI-KALSOMINE CO.
    1. Circuit Courts — Order for Production of Books — Review-
    Mandamus.

      Mandamus is the proper proceeding-by which to review an order of the circuit court requiring?a defendant corporation to produce books and papers for the inspection of the plaintiff.
    2. Same — Commissioners—Certiorari.
    Circuit court commissioners are not authorized to interfere with proceedings in the circuit court by granting the writ of certiorari to a party aggrieved by a ruling of the circuit judge.
    Case by Melvin B. Church against the Anti-Kalsomine Company: On motion to dismiss a writ of certiorari, issued by a commissioner on defendant’s application.
    Submitted January 31, 1899.
    Granted March 6, 1899.

      Hyde, Earle & Thornton, for the motion.

      T. J. O’Brien (Fletcher & Wanty, of counsel), contra.

   Per Curiam.

The court in this case made an order that the defendant produce certain books and papers for the examination of plaintiff’s bookkeeper. Defendant applied to the circuit court commissioner to allow the writ of certiorari to this court to review this order. The commissioner allowed the writ. Plaintiff moves to dismiss it.

We think the motion must be granted. Mandamus is the proper remedy. Cummer v. Kent Circuit Judge, 38 Mich. 351; Petrie v. Muskegon Circuit Judge, 90 Mich. 265; Eddy v. Pay Circuit Judge, 114 Mich. 668.

We do not think it was the intention of the legislature to authorize a circuit court commissioner to interfere with proceedings in circuit courts, and thus permit an inferior officer or tribunal to decide that a superior one has committed error, and stop further proceedings by granting the writ of certiorari to review such action.

Motion granted, and writ dismissed.


author: Hooker, J.

text:
    RAYMOND v. WHITE.
    1. Contracts — Duration—Uncertainty.
    An agreement to pay an.inventor a specified sum weekly so long as devices invented by him are used by the other party in his manufactures, in consideration of which the inventor is to assign patents already obtained and to devote his time to the invention of improvements, is not void for uncertainty as to the time of its duration.

    3. Same — Termination.
    A provision of the agreement empowering the manufacturer, in the event of his discontinuing entirely the business to which it relates, to terminate the weekly payments to the inventor upon written notice and assignment of a stated interest in the patents, but expressly providing that no such discontinuance shall occur so long as any device is manufactured under said patents, does not authorize a termination of the agreement upon notice and assignment, if manufacture under the patents is continued.

      3. Same — Remedies—Damages.
    Upon the manufacturer’s attempting to terminate the agreement on notice and assignment, without discontinuing the use of the patented devices, the inventor is not limited to an action for damages as for a breach of the contract, but, having performed on his part, may sue upon it, and recover the weekly payments withheld.
    Error to Kent; Adsit, J.
    Submitted January 24, 1899.
    Decided March 6, 1899.

      Assumpsit by Silas H. Raymond against T. Stewart White and Thomas Friant to recover an amount due under a contract for the manufacture of a patented article. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Bundy & Travis and Charles Chandler, for appellants.

      McGarry & Belden, for appellee.

       Contracts for permanent employment, and similar agreements, is the subject of a note to Carnig v. Carr, (Mass.) 35 L. R. A. 513.

   Hooker, J.

This action was commenced in justice’s court, and, upon appeal, was tried before the circuit judge without a jury. His findings of fact and law are as follows:

“The parties in this cause being in court by their respective attorneys, ready for trial, and the issue joined therein having been brought on for trial before the court without a jury, and the said court, having heard the proofs and allegations of the parties, and .the arguments of counsel, after mature deliberation therein, finds that on the 4th day of August, 1893, the plaintiff entered into a written contract with the defendants, which reads as follows:
‘“Articles of agreement made and concluded this 4th day of August, A. D. 1893, by and between Silas H. Raymond, of Paris township, in the county of Kent and State of Michigan, party of the first part, and T. Stewart White and Thomas Friant, of Grand Rapids, county and State aforesaid, parties of the second part, witnesseth:
“ ‘1. In consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, and the further considerations hereinafter named, the party of the first part agrees as follows: To surrender all claims under and by virtue of a certain contract be-, tween the above-named parties, dated the 3d day of January, A. D. 1891; to turn over to said second parties all right, title, and interest in and to all carpet-sweeper inventions and devices heretofore invented by him, and to sign and execute proper and legal applications for patents on the same, and assignments thereof to said second parties, except as to such as are already so disposed of; to continue to use his best talent, and continuously exert himself to the best of his ability, to invent further improvements thereon and other analogous devices, which said devices and improvements, when so invented, he will in like manner make, sign, and execute applications for patents thereon, and also in like manner assign the same to said second parties.
“‘2. In further consideration whereof, the second parties agree to pay the said first party the sum of twenty dollars (§20) each and every week during the continuance of this contract, payable weekly. Said second parties further agree to manufacture, or cause to be manufactured, either by themselves or others, such of said carpet-sweeper devices already acquired or to be acquired by them as they may deem advisable or profitable; and this contract shall continue so long as such manufacture shall embody any device covered by any patent so obtained and assigned, or to be obtained and assigned.
“‘8. Said second parties further agree that, in the event of their effecting a sale of said patents or a license under the same, their assigns or licensees shall enter in a good and sufficient contract to carry out this contract with said first party.
‘“4. It is further mutually agreed that in the event said second parties or their assigns should altogether cease and discontinue said manufacture, and desire to discontinue the services of said first party and the payment of §20 per week, they may do so by proper written notice, and assigning* by proper legal writing, a one-third interest in all patents on said carpet-sweeper devices issued or to be issued to said first party, and assigned by him as aforesaid; but it is expressly understood that no such discontinuance shall occur so long as any device or devices are manufactured, under said patents as aforesaid.
“ ‘ 5. It is also further mutually agreed that, in the event of the death or disability of said first party, said payment of §20 per week shall be continued and paid to his wife, Emma H. Raymond, or such other beneficiary as said first party may direct, subject to like conditions as to sale or discontinuance as aforesaid.
“‘Silas H. Raymond.
“ ‘White & Friant.
“ ‘In presence of—
“‘Louis E. Flanders,
“‘Luther V. Moulton.’
“I further find that, after the making of said contract, the said White & Friant entered into a contract with Gaius W. Perkins and Charles J. Reed, and formed a partnership known as the Sweeperette Company; and that said Sweeperette Company entered into a contract with the Grand Rapids School-Seating Company to manufac-. ture carpet sweepers, the said Sweeperette Company receiving a royalty from the said Grand Rapids School-Seating Company.
“I further find that the said Silas H. Raymond, at the date of said contract, to wit, on the 4th day of August, 1893, had already obtained eight patents on carpet sweepers, which had been duly assigned to the defendants under their former contract; and that, after the making of this new contract, the said Silas H. Raymond obtained eleven more patents on carpet sweepers, which were duly assigned to the defendants according to said contract.
“I further find that the plaintiff, on the 4th day of August, 1893, surrendered all claim under and by virtue of a certain contract between said parties, dated the 3d day of January, 1891, and turned over to said defendants all right, title, and interest in and to all carpet-sweeper inventions and devices invented by him, and signed and executed proper and legal applications for patents on the same and assignments thereof to said defendants; and that he continued to use his best talent, and continuously exerted himself to the best of his ability, to invent further improvements thereon and other analogous devices; and that, when devices and improvements were invented, he ■signed and executed applications thereon, and assigned the same to defendants.
“I further find that the defendants paid the plaintiff at the rate of $20 per week up to and including the 5th day of May, 1897, when the defendants served notice on the plaintiff in the following terms:'
‘“To Silas H. Raymond.
‘ ‘ ‘ Sir: Please take notice that we have decided to cease and discontinue, and have ceased and discontinued, the manufacture and causing the manufacture of carpet sweepers and carpet-sweeper inventions and devices under the contract between you and ourselves of date August 4, 1893, and hereby notify you that we have discontinued your services provided for in said contract, and, to that end, herewith hand you assignments, executed by the proper persons, cf an undivided one-third interest in all patents which have been issued to us or our assigns under the terms of said contract.
“‘May 5, 1897.
“ ‘T. Stewart White.
“‘Thomas Friant.’
“Attached to said notice, and delivered to the'plaintiff therewith, was a duly-executed written assignment of a one-third interest in all patents which had been issued to Silas H. Raymond, or to his assigns, under either of the contracts above referred to, and which had been assigned to the defendants.
“ I further find that after the 5th day of May, 1897, the said defendants, with the Sweeperette Company and the Grand Rapids School-Seating Company, continued, to-manufacture carpet sweepers which embodied devices covered by some of the patents obtained by the said Silas H. Raymond; that prior to the 5th day of May, when said notice was served, the Grand Rapids School-Seating Company, under their contract, was manufacturing carpet sweepers embodying some of the devices covered by the patents obtained by the plaintiff, and assigned to the defendants; and that said manufacture continued with no interruption or change whatsoever, and now continues at the present time, and the carpet sweepers manufactured after the 5th day of May, and up to and including the present time, are the same kind of carpet sweepers, embodying the same devices, covered by the Raymond patents, the same as were manufactured prior to the 5th day of May.
“I further find that after the 5th day of May, 1897, the said Silas H. Raymond continued to use his best talent, and continuously exerted himself to the best of his ability, to invent further improvements on carpet-sweeper and other analogous devices, and that he has carried out his part of the contract with no interruption.
“I further find that, at the time this suit was commenced, more than one week had elapsed after the 5th day of May, 1897, and that there was due to the plaintiff from the defendants, under said contract, at the time this suit was commenced, twenty dollars ($20).
“As a conclusion of law, I find that the contract is valid and still in force, and that, under the facts, the plaintiff is entitled to a judgment for twenty dollars ($20).
“Allen O. Adsit,
“Circuit Judge.”

Counsel for the defendants claim:

First. That the contract was void for uncertainty.
Second. That, if valid, by its terms, they had a right to terminate it.
“Third. That, in any event, the action should be for damages upon a breach of the contract, and that suit to recover the sum provided as compensation, upon the theory of performance, will not lie.”

This contract is not a mere contract of service. It was an agreement under which the defendants acquired rights to manufacture a sweeper. In return, they promised to pay $20 a week to the plaintiff; that such payment should be made to his wife in case of his death; and this was to continue as long as the defendants should continue the use of his devices, or cause it to be done. It was also agreed that the plaintiff was to devote his time to the invention of improvements in carpet sweepers, for which he was to sign applications for patents, and assign the same to the defendants. We think there is nothing fatally uncertain about this contract. It contains an agreement to pay as long as the defendants shall use the devices. It does not fix the time that they are bound to continue to manufacture, and it may be true that they can cease to do so at will, thereby terminating the contract; but they were bound to commence the manufacture, and to pay as long as continued, and, on the other hand, the plaintiff was bound to give! them the benefit of his inventions and his ability to invent. There is no want of mutuality in these promises, and the time that the contract was to continue was .not uncertain, if it can be said to be indefinite.

The action was brought to recover plaintiff’s earnings under the contract, — in effect, to recover an installment of the purchase price,- or royalty. This was proper if it was earned; but counsel say that it was not earned, because they had terminated the contract, and, therefore, that plaintiff’s remedy is in an action sounding in damages for a refusal to perform. Had the defendants never commenced the manufacture of the sweepers, the plaintiff would have had such a right of action; possibly he would have had no other. But the defendants did commence, and still continue, such manufacture. Their only right is based upon this contract. They claim the right to hold a two-thirds interest in these patents, which can be based on nothing else; and it is the only basis for their right to manufacture at all. But they refuse to pay the consideration. So far the plaintiff has fully performed his contract, as he had a right to do; and he is entitled to his pay for so doing, according to the terms of the contract. If defendants saw fit to tender back a one-third interest in the patents, he need not accept it. If they refuse to accept the benefit of his services, he need not complain, unless he chooses to do so; and he is under no obligation to refrain from performing his part of the contract upon their request, although it be accompanied by a refusal to accept the result of his services or pay future installments of the contract price. We think the case is not within the principle of Gillett v. Bowman, 43 Mich. 477, and the judgment is affirmed.

The other Justices concurred.


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    ENGLISH v. YORE.
    Promissory Notes — Consideration—Land Contract — Undisclosed Lease — Instructions—Evidence.
    In an action on a promissory note, the submission to the jury of the question whether it was made as a payment on a land contract, and without consideration because of the undisclosed existence of a lease of the premises, is reversible error, in the absence of evidence that the vendee did not know of the lease, or that the vendor, because of the lease, .was prevented from fulfilling the contract.
    Error to Berrien; Coolidge, J.
    Submitted January 24, 1899.
    Decided March 6, 1899.

      Assumpsit by Peter English against Patrick Yore on a promissory note. From a judgment for plaintiff, defendant brings error.
    Reversed.

      William C. Hicks (George W. Bridgman, of counsel ), for appellant.

      Gore & Harvey, for appellee.
   Hooker, J.

The defendant has appealed from a judgment upon a promissory note. This note was made by -the plaintiff, payable to the defendant, who indorsed it, and negotiated it at a bank in Benton Harbor. It was afterwards paid by the plaintiff, whose claim is that this was an accommodation note, made at the request of the defendant, and that it was paid by the plaintiff because the defendant refused to pay it. The defendant asserts that this was not an accommodation note, but was made and delivered to him as part payment upon a land contract which the parties had made. The evidence discloses that the land contract was abandoned after the note was made, and that payments previously made upon it were forfeited, and the court and parties appear to have understood that the case should depend upon the circumstances under which the note was given, — if as a loan, the plaintiff should recover; if a payment on the contract, he should not. The court told the jury this explicitly, but he algo permitted them to dispose of the case upon other grounds. It appeared upon the trial that the land contracted was owned by Yore, and that, a short time before the contract was made, he had given a lease of the premises to third parties. The court instructed the jury as follows:

‘ ‘ Gentlemen of the jury: In this case there is practically one question of fact, — whether the furnishing of this money was a loan, or was it to be paid on this contract. That is practically the only question under the circumstances developed on this trial. It is claimed by the plaintiff in this cause that under the circumstances it was simply a loan, and that it was not to be applied upon the contract unless the contract was carried out, and that the contract was never carried out. It appears in this case that the contract was practically rescinded by agreement between both the parties, and that Mr. English never took possession practically of the land embraced and described in this contract. It also appears that there was a lease of these premises at the time this contract was made. Now, if Mr. Yore agreed to furnish Mr. English a good title to this land, and this lease existed, — and there is no denial of that fact, — then there was no consideration for this note, unless Mr. English accepted this contract with full knowledge that there was such a lease. I leave that as a question of fact for you to consider. If Mr. English did not accept that contract with that lease, — if he did not understand that these premises were leased for five years,— then, gentlemen, he was not bound to accept this contract at all, and there never was any consideration for this note, and therefore he can recover; that is, there was no consideration, treating it as a payment on the contract, and he can recover on this note. It appears that there was some amicable adjustment of this matter between the parties, and that this contract was entirely rescinded. What was said between the parties with reference to the payment of this $1,000 does not appear in this case on either side, as far as that is concerned. Of course, you will take into account all the circumstances of the case. It is claimed by the plaintiff that this money was not intended to be applied upon that contract unless the contract went through, and the contract fell through, and was rescinded by the act of both parties, and that there was a special reason why the note was given. Ordinarily, when money is paid on a contract, it is indorsed on the contract, or a receipt is given showing that the money is to be indorsed on the contract. In this case it was not done. You have a right to take these facts into consideration as bearing upon the question whether it was agreed that this money should be applied on the contract or not. How it happens that there was a reason for the giving of this note, instead of applying the money on the contract, Mr. Yore claims that there was some understanding after-wards. Of course, you can take that into consideration so far as that is concerned. The questions here are simply questions of fact; no question of law about it.”

Jury returned for further instructions. Charge in regard to the lease read by stenographer. ■

Court: “If you find the facts as I state there, you find for the plaintiff. Is that plain enough to you? Unless ■Mr. English accepted it with full knowledge that there was a lease, and practically agreed to accept it with the lease, that then there would be a failure of the contract, and this money could not apply on the contract; the note would be good. Of course, if Mr. English accepted the contract knowing all about the lease, and took it with the lease, then that principle would not apply; then thq other question would arise in the case. I. charged you in regard to that, you recollect. Unless Mr. English accepted that contract knowing that there was a lease, and accepted it with the lease, there would be a failure of consideration, and he would not be obliged to take the land, and this money could not be applied on the contract at all.”

The defendant complains of this charge, and says that there was no evidence or claim that the plaintiff did not know about the Randall-Lane lease.

There are two theories, upon either of which the verdict may have been based: (1) The jury may have believed that the plaintiff’s version was true, and the note given as a loan. If we could know that this view was taken, the other question would be unimportant. But we cannot know this. (2) They may have believed the defendant’s statement that it was agreed to be a payment,..and yet" found a verdict for the plaintiff .upon the ground that the contract failed by reason of his ignorance of the Randall-Lane lease. The Randall-Lane lease might or might not have prevented the defendant from performing his contract. The agreement was not necessarily void, and, until the plaintiff showed himself entitled to refuse to carry it out, it cannot be said that his payments were without consideration. ‘ The defendant testified that the plaintiff knew of this lease, and nothing indicates that any fault was found about it, or that the contract was abandoned on account of the lease, but it is apparent that other reasons caused it to be canceled by the parties. We find nothing in the record to justify the submission of this question to the jury.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    HINE v. COMMERCIAL BANK OF BAY CITY.
    1. Trover — Conversion of Stock.
    Trover lies for the conversion of corporate stock.
    2. Same — Defenses—Fraudulent Assignment.
    In an action for the conversion of shares of stock left with defendant by an assignee for cancellation and the issuance of new certificates, which were not furnished, but the stock retained until the maturity of a debt due from the assignor, and then attached, the defendant cannot show that the assignment to the plaintiff was fraudulent.
    8. Same — General Issue — Special Defense — Attachment.
    That stock, for the conversion of which suit is brought, is held by virtue of an attachment, cannot be shown under a plea of the general issue, without notice of such defense.
    4. Trial — Remarks of Court.
    Language of the court indicating clearly to the jury his opinion of some of the important controverted facts is prejudicial error.
    ~"'EiTON-to Bay; Maxwell, J.
    Submitted January 24, 1899.
    Decided March 6, 1899.
    Trover by Frederica Hine against the Commercial Bank of Bay City, Ira H. Wilder, and'Charles C. Whitney. From a judgment for plaintiff, defendants bring error.
    Reversed.

      T. A. E. & J. C. Weadock, for appellants.

      Frank S. Pratt, for appellee.
   Moore, J.

Plaintiff recovered a judgment against defendants, in an action of trover, for the conversion of 20 shares of the stock of the Bank Building Company, Limited. The declaration contained three counts. The plea was the general issue. The court was requested to direct a verdict in favor of Mr. Whitney and the Commercial Bank. His refusal to do so is said to be error. It is tbe claim of plaintiff that on January 18, 1897, she became the owner of the shares of stock by assignment from Theodore Hine, and that on the following day the certificates of stock were left with Mr. Wilder, who was the treasurer, and one of the three directors and managers, of the Bank Building Company, Limited, with a request to cancel the certificates and issue new certificates to the plaintiff; that Mr. Wilder was at the same time cashier of defendant bank, and in active management of its affairs; that the controlling share of the stock of the Bank Building Company, Limited, was owned by the bank; that Mr. Whitney was a director in the bank, as well as in the building company; and that the bank, Whitney, and Wilder entered into an arrangement to-withhold the issue of the certificates of stock to plaintiff until a debt owned by the bank against Theodore Hine matured, with a view of attaching the stock by the'bank; and that this resulted in a refusal to issue to her certificates of her stock, or to recognize her owhership of it, which arrangement was carried out. She gave evidence tending to support her claim. On the part of the bank this claim was denied. It was claimed that Mr. Wilder’s action was not the act of the bank; that he had no knowledge of the attachment suit until after it was commenced; and that there was no conversion of the stock in fact.

Trover will lie for the conversion of the stock. Daggett v. Davis, 53 Mich. 35 (51 Am. Rep. 91); Hubbell v. Blandy, 87 Mich. 209 (24 Am. St. Rep. 154); Smith v. Thompson, 94 Mich. 381. And we think there was testimony in relation to the conversion, and the relation of the three defendants to each other, which made it the duty of the judge to submit the question to the jury as to whether there was a conversion in fact.

Defendants sought to show that the assignment from Theodore Hine to the plaintiff was fraudulent. The circuit judge properly declined to permit this. The attachment suit was not against the plaintiff, but was against a third party. ■ It was begun subsequent to the assignment, and subsequent to the delivery of the certificates to Mr. Wilder. Trowbridge v. Bullard, 81 Mich. 451; McLean v. Medicine Co., 96 Mich. 479.

The defendants sought-to introduce by way of defense the attachment suits against Theodore Hiñe. As no notice was given with the plea of the general issue, 'this was properly refused. Fry v. Soper, 39 Mich. 727; Frankel v. Coots, 41 Mich. 75; Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489.

In his charge to the jury, the court made use of the following language:

“When that assignment (unless there is something shown to the contrary) was thus presented, and a request made, it was the duty of the corporation, within a reasonable length of time, to make a new certificate and deliver it. What is a reasonable time is usually a question of law, but in this case it is a question of fact for you to determine. In determining that question, you will bear in mind the facts as they appear: First, that it was presented on the 19th day of January; and, second, the various refusals, and the policy of delay pursued by the de.fendants, or some of them; and, finally, the attachment of the property, as has been mentioned, and the entire refusal to surrender it or to issue new stock, as I understand the evidence. ”

It was the claim of the plaintiff that, after the assignment Was made to her, she gave Mr. Pratt a proxy to represent her stock at the meeting of the stockholders, and defendant refused to recognize Mr. Pratt as her proxy. It was claimed that this tended to show a conversion. It was claimed on the part of the defense that Mr. Pratt did not have a legal proxy, and for that reason was'not recognized. During the progress of the charge the following occurred:

“Mr. Weadock: Then I desire to ask the court to charge, as to what took place at the meeting of March 3d, that they must find, that they refused to allow Mr. Pratt as proxy, and they must show that he had a regular proxy to represent her. There has been no proxy shown, and it must be made in writing.
The Court: He submitted tbe proxy to me.
■ ‘ ‘ Mr. Weadock: He submitted a proxy in another case.
“Mr. Pratt: The identical proxy.
“Mr. Weadock: It was not used in evidence.
The Court: I think the corporation must show that he had no authority to attend that meeting.
“Mr. Weadock: But it is so recorded in the minutes. That is their conclusion formed at that time. . And then I desire to ask the court to instruct the .jury that the purpose of the officers at that meeting must have been to exclude the plaintiff, and her representative by proxy, in order that they might convert the shares of stock, and to deny the plaintiff any right in the shares of stock.
The Court: I do not regard the intention as im-
portant. They need not have done it for that purpose. It does not make any difference what they did it for. That they assumed ownership of the property to the exclusion of the plaintiff, absolutely and solely, and excluded her and denied any right of action of hers, — the jury may find by what they did at the meeting.”

We think this language of the court indicated clearly to the jury his opinion of some of the important controverted facts, and was prejudicial. McDuff v. Detroit Journal Co., 84 Mich. 1 (22 Am. St. Rep. 673).

We do not think the other assignments of error are well, taken.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


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    KIRSCHBAUM v. JASSPON.
    1. Sale — Fraudulent Representations — Commercial Reports.
    Plaintiff in replevin makes a case for the jury as to whether defendant, to whom he sold the goods replevied, misrepresented his financial standing in order to obtain credit, where he shows that defendant, some 14 months prior to the sale, made a report to a commercial agency, on which plaintiff relied, representing his assets at §24,000 and his liabilities at §9,000, and one year later represented himself to be in fully as good financial condition, refusing, however, to make a new itemized report, and witliin five months thereafter gave chattel mortgages for §20,000, covering all his property, and placed the mortgagees immediately in possession.
    2. Same — Evidence.
    That a tradesman, immediately preceding his failure, purchased on credit large and unusual quantities of goods from firms he had never dealt with before, is admissible in evidence on the question of fraud.
    Error to Alpena; Kelley, J.
    Submitted January 25, 1899.
    Decided March 6, 1899.
    Replevin by Simon Kirschbaum and others against Max Jasspon, Bernard Wolff, George L. Maltz, and others. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Joseph H. Cobb, for appellants.

      I. S. Canfield and J.- D. Turnbull, for appellees.
   Long, J.

Plaintiffs are wholesale clothing merchants in Philadelphia. Defendant Jasspon for a number of years carried on a retail clothing house at Alpena, this State. In July and October, 1896, he purchased certain goods of plaintiffs on credit. On October 31, 1896, he gave to defendants Wolff and Maltz a trust mortgage to secure certain creditors for the'sum of $20,889.63. The mortgage covered all the property of defendant Jasspon, and the mortgagees immediately went into possession. Plaintiffs, claiming that Jasspon made certain false and fraudulent representations as to his financial standing to obtain credit for the goods sold to him, and that he had in mind at the time of the purchase the giving of this chattel mortgage, and never, intended to pay for the goods, brought replevin, and obtained a portion of them from defendants Wolff and Maltz. On the trial the court directed the verdict in favor of defendants. Plaintiffs bring error. The errors claimed relate to the rulings of the court in refusing to receive certain evidence offered by plaintiffs, and in directing the verdict in favor of defendants.

Plaintiff Kirschbaum’s deposition was taken, and read on the trial, from which it appears that plaintiffs sold Jasspon, from July to October, some $700 worth of goods; that in making this sale they relied upon a report made by Jasspon to the R. G. Dun & Co. Mercantile Agency; that the first report, made on June 4, 1895, stated his assets as follows:

Stock on hand_________________________________ $9,356 13
Bills receivable................................ 4,730 10
Mortgage on farm and lumber outfit------------ 904 44
Accounts receivable........................... 5,728 87
Cash.......................................... 512 42.
Realty...............-.......................1,187 76
Horses, white pine, and cedar.................. 1,750 00 .
Total......................-..............$24,169 72
Bills payable------------------------- $5,031 10
Accounts payable_____________________ 3,905 00
Total....................-_________________ 8,936 10
Leaving surplus________________________— $15,233 62

This report is supplemented by one dated June 6, 1896, in which Jasspon reports himself as in fully as good condition as the year before.

Mr. Michael O’Brien was called as a witness for the plaintiffs, and testified substantially that he represented R. G. Dun & Co. He stated:

“I heard you [counsel for plaintiffs] read the report made by R. G. Dun & Oo. on Max Jasspon. Mr. Jasspon verified both of those reports.”

On cross-examination the witness stated further:

“I do not know whether Mr. Jasspon ever saw the report after it was made out. Mr. Guerton got the figures from Mr. Jasspon’s books, from his statements, inventory, and other books. He took the statement from the books for the first report. The second report was given to me. He refused to make a statement in particular. I had that first report at that time. He did not want to itemize any report. He said he was in just as good shape as he was the year before. His property was not in condition to make it, — it was floating around. I refer to the report in June, 1896.”

On redirect examination, the witness stated:

“Mr. Jasspon came to me in the spring of 1896, and made a statement that he had lost his financial standing and credit, and asked me, as a representative of R. G. Dun & Co., to assist him. I cannot fix the date. * * * I told him anything I could do to help him back, I would do. It was then, or about that time, he called me into the back room of his store, and showed me his business, and all connected with it, for the purpose of getting a re-rating. He got a re-rating, and he had a standing. * * * I had confidence in Jasspon, and thought he told the truth.”

It appears, therefore, that in 1896, the year that this credit was extended by plaintiffs, Jasspon stated that he was in just as good standing as he was the year before, and he must have known what that rating was, and what his standing was then. In the year 1895 he was shown by the report to be worth over $15,000, and yet in October, 1896, he made a chattel mortgage to the defendants Wolff and Maltz for $20,889.63, covering all his property, and giving the mortgagees immediate possession of the property. We think there was some testimony to go to the jury on the question of misrepresentation on the part of Mr'. Jasspon as to his financial standing.

There was also some testimony in the case which would have warranted the court in submitting to the jury the question whether Jasspon, in purchasing the goods from plaintiffs, intended to pay for them. He knew the effect of his reputed standing, as shown by the report of 1895. He affirmed that it was as good in 1896 as in 1895. He thus obtained credit. From July 1, 1895, to April 1, 1896, he purchased only $7,000 worth of goods. From April 1, 1896, to October 31, 1896, the date of the trust mortgage to Wolff and Maltz, he purchased $22,500 worth of goods; and when the inventory was taken it was found that the stock on hand was worth only $7,381.80, and the accounts amounted to but $4,306.75. The plaintiffs • offered to show, that most of the $22,500 worth of goods had been purchased from firms he had never dealt with before. This testimony should have been admitted. Great latitude must be allowed in the examination of witnesses in this class of cases. Fraud in the purchase was charged, and the question whether Jasspon intended to pay for the goods purchased from plaintiffs at the time of purchase could be shown only by facts and circumstances surrounding the whole transaction.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.


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    WARNER v. WARNER.
    Deeds — Validity—Exclusion of Children.
    A deed will not be set aside after the grantor’s death because it disposes of his property to the exclusion of his children, where it appears that he was of sound mind at the time, and was not subjected to undue influence.
    Appeal from Monroe; Kinne, J.
    Submitted January 25, 1899.
    Decided March 6, 1899.
    Bill by George A. Warner and others against Ellen Warner and Annie B. Peters to set aside certain deeds. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Ira G. Humphrey and Willis Baldwin, for complainants.

      Charles A. Golden, for defendants.
   Long, J.

This bill is filed by the complainants, who are children of E. J. Warner, deceased, to cancel certain deeds made by their father, in his lifetime, to Ellen Warner and Annie B. Peters. Complainants claim that Ellen Warner was never legally married to E. J. Warner, while the defendants claim that there was a legal marriage. We think the proofs show that there was a legal marriage. It appears that Ellen Warner had.formerly lived with a man by the name of Comstock, but no marriage relations seem to have been entered into between them. Mr. Warner’s wife died, and soon after he was married to Ellen Warner. The other defendant is a daughter of Mr. Warner, and is a sister of the complainants. Mr. Warner had 11 children by his first marriage, 10 of whom are now seeking to set aside these conveyances on the ground of undue influence, and also upon the ground that the father was mentally incompetent to make them. The property is of the value of about $4,000. The court below was of the opinion that the complainants had wholly failed to make out a case, and dismissed the bill.

There are no questions of law involved, and it would be of no profit to the parties or to the profession to set out the testimony, or any portion of it, upon which the complainants rely to support their bill. All the deeds made were recorded, either upon the day they were executed or within a few days thereafter. Mr. Warner, at the time of his death, was 59 years of age, and his wife, Ellen, was 48. We think the testimony does not establish the fact of "undue influence, nor does it show that Mr. Warner was mentally incompetent to execute the deeds. The court below saw the witnesses, and arrived át the same conclusion. The property all belonged to the deceased, and he had a perfect right to dispose of it in a manner satisfactory to himself, and which he evidently did. While it may be a hardship to the children that their father thus disposed of his property, the courts cannot control the disposition of it, if he was of sound mind at the time, and no undue influence was used to bring about that result.

The decree of the court below must be affirmed, with costs.

The other Justices concurred.