author: Fellows, J. Brooke, J.

text:
    ROACH v. KELSEY WHEEL CO.
    1. Master and Servant — Workmen’s Compensation Act — Defenses — Review—Rule of Industrial Accident Board.
    On certiorari to review an award of compensation by the industrial accident board, under the workmen’s compensation act, defenses not relied upon in defendant’s statement denying liability, filed in conformity with a rule of the board, and not relied upon on the hearing before the arbitration committee and on review before the full board, are not available in the appellate court.
    2. Same — “Accident”—Death—Liability of Employer.
    Where claimant’s decedent was employed to help tear down some brick work in the superheated boiler room of defendant’s plant, during very hot weather in July, and was overcome by the heat on July 24th, remaining away from work on the 25th, but returning to work on the 26th and continuing to work until the afternoon o-f the 27th, when he was again overcome by the heat and died the same evening, his death was not the result of an accident rendering the employer liable under the provisions of the workmen’s compensation act. Moore and Fellows, JJ., dissenting.
    Certiorari to Industrial Accident Board.
    Submitted October 16, 1917.
    (Docket No. 152.)
    Decided March 27, 1918.

      Phoebe Roach presented her claim for compensation against the Kelsey Wheel Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the ■ iEtna Life Insurance Company, insurer, bring certiorari.
    Reversed.

      Douglas, Eaman & Barbour, for appellants.

      Howard H. Campbell (Albert E. Meder, of counsel), for appellee.
   Fellows, J.

(dissenting). Plaintiff is the widow of George Roach, a workman; defendant Kelsey Wheel Company an employer of labor operating under the workmen’s compensation law at the time of the transaction ; the Aetna Life Insurance Company its insurer. In the conduct of its business the Kelsey Wheel Company, hereafter called the defendant, deemed it necessary to tear out and rebuild the brick work around one of the boilers in its plant. Whenever it was necessary to do such work it was its custom to employ one Nicholas Jackman, a mason by trade, who would procure such additional help for it as might be desired. Jackman and the helpers were each paid the union wage by defendant, punched the clock as other employees did, and continued in the employ of defendant until the work in hand was completed. Jackman, Roach and others commenced this work July 24, 1916. The weather was extremely warm. The first thing done was to tear out the old brickwork, and carry away and dump the old brick and mortar outside. The wreckage was piled on trucks which were quite heavy, and these trucks when loaded were pushed outside the building by the workmen and unloaded. The brick work around the boiler was still warm when the work was undertaken and the adjoining boiler was in operation under a head of steam stated to be 125 pounds. The partition walls were heated and it is said that the place where the wrecking was' being done had a temperature of around 136 degrees. The laborers could not remain under such heat for any considerable time. On the first day of the employment decedent was prostrated by the heat and went home. He did not work the next day, but did the following day until shortly before quitting time, when we infer, although the record is not clear, he had another attack which was slight. The following afternoon he again collapsed, was taken to his home and died that evening. A fellow employee who was with him when he fell testified:

“I was with him on the last day that he worked there, when he fell. He was standing up and we were just going to give the thing another shove, this truck, and he fell over on the side of his face. We picked him up and he was bleeding. He fell against the only thing there, concrete. The fall made his face bleed. He fell right up against the concrete. It is all concrete there where we were working at the time. Hit his head against the concrete. He became unconscious right then. After he fell over he never said anything more. We were inside of Kelsey’s yet. We 'were taking a rest. It was pretty heavy. We were inside of the building. We would shove it out a little, then take another rest. Then we gave another push and he fell. He had been working under the boilers there.”

On October 16, 1916, plaintiff having filed a claim for compensation, defendant denied liability in the following language:

“As it appeared from our investigation that Mr. Roach’s death was due to being overcome by the excessive heat of the season we did not regard same as arising out of the employment and therefore no report was made for your office and for the same reason we will have to decline entering into an agreement to pay compensation under the Michigan workmen’s compensation act.”

Arbitrators were appointed and at the opening of the hearing by the board of arbitration the following occurred:

“Chairman Reaves: I will ask you to stipulate, Mr. Kennedy, what you can in this case.
“Mr. Kennedy: (defendant’s attorney) As far as we are concerned we can admit that his wages were forty cents an hour, working eight hours a day.
“Mr. Reaves: You admit he was employed by the Kelsey Wheel Company?
“Mr. Kennedy: Yes.
“Chairman Reaves: As a laborer?
“Mr. Kennedy: Yes.
“Chairman Reaves: Repairing boilers?
“Mr. Kennedy: Yes.
“Chairman Reaves: For the Kelsey Wheel Company. He was employed there on July 27th?
“Mr. Kennedy: That is correct.”

The board of arbitration awarded plaintiff $9.80 per week for 300 weeks, which award was affirmed by the industrial accident board. The accident board filed a full and complete finding which it will not be necessary for us to here detail. From this finding we gather that the board concluded that the deceased met his death as the result of a heat stroke induced by the superheated condition of the place of employment, coupled with the strain incident to moving the loaded truck. To review this proceeding we allowed this writ of certiorari. Defendant here insists that the award should be reversed:

“* * * Because the board erred in finding:
“1. That George Roach was an employee of the Kelsey Wheel Company within the scope of the compensation act; because
“(a) His employment was casual only.
“(b) His employment was not in the usual course of the trade, business, profession or occupation of his employer.
“(e) He was an employee of an independent contractor.
“2. That death resulted from an accidental injury sustained by Roach, arising out of and in the course of his employment.”

We are met at the threshold of this case with a question of procedure which must be first considered, as it determines the scope of our inquiry. The plaintiff insists that the questions presented under the first head are not here available; that defendant in its statement denying liability relied solely upon the defense that deceased met his death by reason of excessive heat, which defendant then claimed, and now claims, was not an accident arising out of his employment; that the case was submitted to the board of arbitration upon that theory, and that by reason of this fact, and the admissions of the defendant, the defenses here sought to be interposed under the first head are not open, leaving the sole question for our consideration whether the death of deceased was, within the meaning of the act, due to an accident arising out of his employment.

By section 3, part 3, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5456), the act creating the industrial accident board and prescribing its powers and duties, it is provided:

“The board may make rules not inconsistent with this act for carrying out the provisions of the act.”

Pursuant to this provision the board has adopted a set of rules of procedure governing proceedings before the board, Rule V of which reads as follows:

“If the employer denies liability in”case where a claim for compensation is filed by an injured employee or his dependents, such denial shall be filed with the board in writing by such employer and shall set forth with reasonable detail and certainty the facts and circumstances upon which he relies as a defense to such claim. Upon the filing of such denial in the office of the board, a copy of same shall be furnished to the claimant, so that he will have such seasonable information as to the nature and particulars of the employer’s defense as may be reasonably necessary to enable him to procure witnesses and prepare for the hearing. Respondents will be limited to the grounds of defense so stated on the arbitration hearing and also on review before the full board.”

That power to make rules is lodged in the board, the section above quoted demonstrates; that the rule above quoted is a reasonable exercise of such power, seems to us beyond cavil. It bespeaks an orderly procedure, gives notice to parties interested of the issue raised, and an opportunity to procure witnesses and prepare for a hearing upon such issues. It aids the due administration of justice which is as much the duty of administrative boards as of the courts. We do not undertake to say and do not say that technical niceties, or strict rules of common law pleadings should be indulged in or favored. On the contrary, substance, rather than form, should be the object of attainment. That the board in its discretion, in the interest of justice, may allow amendments to such notice, we have no doubt. The question of abuse of discretion by the board being one for review in this court. Brunette v. Mining Co., 197 Mich. 301.

In the case of Lobuzek v. Foundry Co., 194 Mich. 533, this court had occasion to consider the rules of this board with reference to the taking of depositions in a foreign country, and reversed the case because the board based its finding upon a so-called “protocol” taken without notice and not in accordance with the rules. In Brown v. George A. Fuller Co., 197 Mich. 1, we said:

“Had defendant intended to raise these questions it should have done so before the arbitration committee.”

And in Hamilton v. Macey Co., 195 Mich. 747, we said:

“While in proceedings of this nature we recognize the propriety of ignoring so far as is reasonably possible technicalities, to the end that early adjudication • may be had, we are still of opinion that the board in its consideration of evidence should be bound by rules promulgated under its own authority.”

The rule in question was within the power of the board to adopt. It is reasonable and valid; it not only binds the board, and litigants before it, but it binds this court. Being reasonable and within the power of the board, this court must follow it and recognize it in cases coming here for review.

In the instant case only one defense was set up in the notice, and this appears to have been set up after “investigation.” At the hearing before the board of arbitration certain facts were admitted without claim of any qualifying circumstances or facts surrounding them. The case was disposed of on the record as made. We must here dispose of it on the same record. The plaintiff is correct in the contention that the rule under consideration should be given force by this court, and that, giving force to it, defendants “will be limited to the grounds of defense so stated” in its denial of lia- • bility.

We therefore come directly to the meritorious question in the case, whether, within the meaning of the act, decedent’s death resulted from a personal injury arising out of and in the course of his employment. That he collapsed on the premises of the defendant, while in its employ, is admitted; that he was within the ambit of his employment is not questioned; he was in the course of his employment beyond doubt. That he was a man in robust health with no predisposition to disease, and temperate in his habits, the record discloses. The board found that he suffered a heat stroke which was brought upon him by the superheated condition of his place of employment, and the.testimony abundantly supports such conclusion; that he fell instantly upon an excessive exertion in shoving the heavy truck loaded with brick and mortar after working in the heat under the boiler, appears from the testimony of his fellow employee who was by his side when he fell. This is not a case of a workman being subjected to the ordinary heat of a summer day and which is an incident in the life of all, but is a case where to the natural heat of a hot summer day was added in the particular place of his employment so many degrees of artificial heat as to make it well nigh intolerable, and the men could stand it but a short time and changed frequently. The case is very much like that of LaVeck v. Parke, Davis & Co., 190 Mich. 604, and is controlled by it. If anything, it is stronger for tiie plaintiff than was that case. As that case is so recent and the authorities are there considered, we content ourselves with citing that case, and challenging attention to the following cases there cited which are particularly in point: Ismay, Imrie & Co., v. Williamson, 1 B. W. C. C. 232; Johnson v. SS. Torringion, 3 B. W. C. C. 68. See, also, Davies v. Gillespie, 5 B. W. C. C. 64; Maskery v. Shipping Co., 7 B. W. C. C. 428, and the late case of Kanscheit v. Laundry Co., 101 Neb. 702 (164 N. W. 708).

The award of the industrial accident board should be affirmed.

Moore, J., concurred with Fellows, J.

Brooke, J.

I concur with Justice Fellows in holding that the defenses relied upon by appellant under its first claim are not available to it because of the rule of the board limiting the grounds of defenses to those stated “on the arbitration hearing and also on review before the full board.”

Upon the second question involved, however, I am unable to agree with the conclusion stated by my Brother Fellows. I have examined this record with care and cannot find therein any evidence of an accident. The work in which claimant’s decedent was engaged at the time he was prostrated was being carried on on July 24th, 25th, 26th, and 27th at a time when the temperature outside the building was extremely high. He was overcome and fell unconscious on the 24th and did not report for duty on the 25th. On the 26th he continued to work practically during the entire day, but complained of a headache and stopped working shortly before quitting time. On the 27th he again worked practically the whole day, being again overcome by the heat at about 4 o’clock in the afternoon and he died at 6 or 7 o’clock upon that day. The record is absolutely barren of any evidence that anything untoward or unusual happened in the course of his employment during any of the three days or that he exerted himself in any unusual manner or to an unusual degree. He was doing the work which he and his associates were employed to do exactly in the manner they expected to do it. To permit recovery in this case would make it impossible to deny recovery in any case where a fireman of a stationary or marine boiler, in the performance of his ordinary and accustomed labor, succumbs to heat prostration.

The Michigan compensation act provides compensation for accidental injuries only, Adams v. Color Works, 182 Mich. 157. Recovery here is predicated upon the cases of Schroetke v. Jackson-Church Co., 193 Mich. 616, and LaVeck v. Parke, Davis & Co., 190 Mich. 604. I am of opinion that neither case is authority for the determination of the board, but that compensation should have been denied under our holdings in Kutschmar v. Briggs Manfg. Co., 197 Mich. 146, and Johnson v. Mining Co., 199 Mich. 218.

The award of the board should be reversed.

Ostrander, C. J., and Bird, Steere, Stone, and Kuhn, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Brooke, J. Ostrander, C. J.

license: Public Domain

text:
    LINK v. FAHEY.
    1. Trial — Jury—Voir Dire Examination — Challenges—Appeal' and Error — Waiver.
    In an. action for damages against the owner of an automobile, where plaintiff’s counsel in the voir dire examination inquired of each juror if he owned an automobile, if it was insured, and if he was a member of the Citizens’ Mutual Automobile Insurance Co., said examination apparently being in' good faith, and counsel for defendant, after examining the jury, passed them for cause, and both sides announced themselves satisfied with the jury, and the record does not disclose that counsel for defendant exercised any of his peremptory challenges or preferred any request to charge upon the subject, any error in the examination is held, to have been waived.
    2. Evidence — Hearsay—Res Gestas — Admissions — Appeal and Error — Automobiles.
    In an action against the owner of an automobile for damages caused by a collision with a motorcycle on a public highway,' where witnesses were permitted to testify as to what was said by the driver and the occupants of the automobile, a few minutes after the accident occurred, in the nature of admission of responsibility for the accident, where, independent of said testimony, plaintiff had sustained his theory of the case by a clear preponderance of the evidence, its admission, even if erroneous, held, not prejudicial. Ostrander, C. X, dissenting.
    Error to Livingston; Hart, J., presiding.
    Submitted October 15, 1917.
    (Docket No. 120.)
    Decided March 27, 1918.
    Case by Henry L. Link against Jeremiah J. Fahey for damages to plaintiff’s motorcycle. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. P. Van Winkle ,& Son and L. E. Howlett, for appellant.

      Francis J. Shields, for appellee.

      Plaintiff brought suit to recover damages growing out of a collision between his motorcycle with sidecar attachment and an automobile belonging to the defendant, driven by his daughter, Kathleen Fahey, and in which at the time of the accident were defendant’s wife, another daughter, and a friend. The collision occurred at a point in the highway where a road running in a northeasterly direction intersected a road running east and west. Plaintiff was driving his machine in a northerly or northeasterly direction as he approached the corner and defendant’s machine was being operated in a westerly direction. In attempting to turn south the automobile came into collision with plaintiff’s motorcycle, on the right-hand or easterly side of the north and south road, at a point very close to the corner.
    It was the claim of plaintiff that upon the day in question he was operating his motorcycle in a careful and prudent manner, having it fully under control as he approached the intersection; that he saw the automobile approaching; turned to his right, and finally came to a full stop and that the automobile struck him when his machine was within two feet of the fence along the easterly side of the highway. His testimony as to the manner in which the accident occurred was supported by that of four eyewitnesses who were seated in a dooryard about 13 or 14 rods distant from the point of collision. One other witness who arrived very shortly after the accident and examined the wheel marks left by the motorcycle, testified that at all times said machine was operated to the right of the center of the road going north.
    The driver of the automobile gave testimony tending to show that her-view of the north and south road was obscured by a field of growing corn and that when she turned to the south she- saw plaintiff approaching her at a very rapid rate of speed in the center of the road and that he swerved to the left. Believing that he intended to pass her on the wrong side, she turned to the left to give him the road, when he swung deliberately in front of her. She further testified that at the time of the collision, the automobile she was driving had come to a full stop. Defendant’s story received more or less support from the testimony of the other occupants ■of the car.
    The jury returned a verdict in favor of the plaintiff in the sum of $175.
   Brooke, J.

(after stating the facts). But two errors are relied upon by defendant:

1st. That there was reversible error committed in the examination of the jurors upon voir dire, in that counsel for plaintiff inquired of each juror if he owned an automobile, if it was insured, and if he was a member of the Citizens’ Mutual Automobile Insurance Company. Some of the jurors answered one or more of these questions in the affirmative, and one juror was peremptorily challenged by counsel for plaintiff. Counsel for defendant examined the jury and passed them for cause and thereafter counsel for both sides announced themselves satisfied with the jury. The record does not disclose that counsel for defendant exercised any of his peremptory challenges. Upon this point counsel for defendant cites us to the case note from page 153, L. R. A. 1915A (Egner v. Curtis, Towle & Paine Co., 96 Neb. 18), touching the question, and rely upon the case of Swift v. Platt, 68 Kan. 10, where it is said:

“The inquiry should be conducted by pertinent questions asked in good faith and be confined within reasonable limits.”

The record is barren of anything tending to show that the inquiry was prosecuted in bad faith; indeed, the circuit judge, in his denial of a motion for new trial based upon this alleged error, among others, certifies to the contrary. No request to charge upon the subject was preferred and the jury was passed for cause, after the alleged erroneous, inquiry had been made. Under those circumstances we must hold that the matter was, in any event, waived within Roach & Co. v. Blair, 190 Mich. 11, and Snyder v. Mathison, 196 Mich. 378.

2d. Error is assigned upon the admission of the testimony of .several witnesses to the effect that very shortly after the accident, Kathleen Fahey, the driver of the automobile, admitted that she was at fault. Particular objection is urged against the testimony of one Mr. Phylo who did not arrive at the scene of the accident until some 15 or 20 minutes after it had occurred. The court excluded his testimony as to what was said by the passengers in the automobile, but permitted him to testify as to what he heard the driver of the car say. This witness, testified:

“The lady that claimed to be driving the car told her mother that there was no use of talking about it because she was to blame, she had no business on that side of the road.”

Other witnesses, were permitted to testify to what was said by the other occupants of the automobile within five minutes after the accident occurred. In denying a motion for new trial, based upon this, among other grounds, the court said:

“In the above cause the court does not feel that the admitting the testimony of the witness, Phylo and the « witness Smith as to the statements made by Kathleen Fahey, driver of the automobile, was error. These statements were made by the driver at the time of the occurrence of the collision and before they could be manufactured, and to me were within the rule of res gestee statements. For this reason I do not think the motion for a new trial on this ground is well founded.”

Defendant strenuously contends that this evidence was inadmissible, and its admission reversible error, under the recent cases of Rogers v. Railway Co., 187 Mich. 490, Hyatt v. Storage Co., 196 Mich. 337, and the cases therein digested. As bearing upon the character of the error in admitting the testimony objected to in the case last above mentioned, this court said:

“One cannot read this record without being impressed with the fact that the testimony here complained of was probably controlling of the verdict in the case, and we think, therefore, that its reception was prejudicial error.”

In the case at bar a careful reading of the record impresses us with the belief that no different result would have been reached by the jury if the alleged objectionable testimony had been rejected. Independent of such testimony, plaintiff had sustained his theory of the case, by what appears-to us to be a clear preponderance of the evidence. Assuming, then, that the declarations of the driver of the automobile, made soon after the collision, should have been excluded as hearsay or mere narrative of a past event, we are still of the opinion that its admission, even if erroneous, was not prejudicial.

The judgment is affirmed.

Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Brooke, J.

Ostrander, C. J.

(dissenting). There was a collision of vehicles, resulting in some damage, which collision was either a pure accident or was the fault of one or other or both of the drivers. To determine just what' took place, those who occupied the vehicles were competent witnesses, and no reason appears for not having called them as witnesses. Instead of this, witnesses were permitted to testify what the occupants of the vehicles, or one of them, including the driver of one of them, said with respect to the matter.

It is elementary that this was hearsay testimony, and not admissible. It goes without saying that it was prejudicial to one of the parties.

Assuming, as I do, that it is the province of a jury called to determine an issue of fact to weigh the testimony, determine the credibility of witnesses, and in other respects to apply to the testimony tests to determine where the truth lies, I think it is not the province of this court, in a case where prejudicial, inadmissible testimony has been admitted, to determine that, independent of that testimony, “plaintiff had maintained his theory of the case by what appears to us. to be a clear preponderance of the evidence.”

Whether evidence preponderates must, in my opinion, always be a question for the jury.

The judgment should be reversed and a new trial ordered.


author: Stone, J.

text:
    DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO. v. WILSON.
    1. Contracts — Assignments—Pubiic Poucy — Customs Broker— Assignment oe Pees.
    There are no questions of public policy involved which would affect the right of a customs broker to make an assignment of the fees to be received therefor; the duties being of a private nature.
    2. Same — Master and Servant — Right oe Master to Earnings oe . Servant.
    In view of the general rule that all the time and labor of an employee belongs to his employer during the hours of service, and that the master is entitled to the earnings of the servant earned outside his employment during such hours, an express contract to that effect is valid and enforceable.
    3. Same — Master and Servant — Railroads—Assignments—Public Policy.
    A contract between a railroad company and a clerk employed in its freight office, by which said clerk agreed to remit to the company all fees received by him as a customs broker, in consideration of his receiving a fixed salary, he acting in such capacity for the purpose of facilitating the company’s freight service, held, not void as against public policy.
    4. Same — Public Officers — Assignment of Salary.
    If said contract be considered an assignment, held, not within the exception made in the salaries of public officers and certain fiduciary officers, and therefore valid.
    5. Same — Corporations—Ultra Vires.
    The doctrine of ultra vires cannot be applied to contracts not prohibited, either expressly or by necessary implication, in the statute.
    6. Same — Pleading—Appeal and Error.
    The defense of ultra vires is not available unless specially pleaded.
    7. Same — Estoppel—Performance—Ultra Vires — Public Policy.
    Where a contract has been fully performed on the one side, and no question ofN public policy is involved, the other party is estopped from setting up the defense of ultra vires.

    8. Same — Railroads—Customs Brokers — Assignment of Fees— Performance — Estoppel—Ultra Vires.
    Where a railroad company entered into a contract with a clerk employed in its freight office whereby said clerk was to act as a customs broker for the purpose of facilitating its freight service, and he in return for a fixed salary, which was increased from time to time, agreed to remit the fees received by him as such broker to the railroad company, and the company performed its part of the contract for six years, and until the termination of the employment, defendant is estopped from claiming that the contract was ultra vires, in an action to recover part of the fees not remitted in accordance with said contract.

      Error to Chippewa; Fead, J.
    Submitted January 24, 1918.
    (Docket No. 171.)
    Decided March 21, 1918.
    Assumpsit by the Duluth, South Shore & Atlantic Railway Company against Edmund Wilson for brokerage fees received while in plaintiff’s employ. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. M. Larmonth, for appellant.

      Warner & Sullivan, (Ralph R. Eldredffe, of counsel), for appellee.
   Stone, J.

Action to recover the amount which defendant had retained of fees as customs broker, while in plaintiff’s employment as chief clerk at Sault Ste. Marie.

The declaration consisted of the common counts in assumpsit, and the plea was the general issue with a notice of set-off. The facts were stipulated, and counsel for the respective parties agreed, in open court, that there being no question of fact to submit to the jury, the trial court should direct a verdict and judgment to be entered, as might be determined. Briefly stated, the facts as stipulated were as follows;

The plaintiff maintains a local freight agent at Sault Ste. Marie, Michigan, and a freight office jointly with the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, in which defendant was employed as chief clerk for many years prior to January 15, 1915. On February 21, 1907, plaintiff’s local freight and passenger agent at Sault Ste. Marie, Michigan, (Col. Frank E. Ketchum) died, and thereafter the positions of local freight and passenger agents were separated, and Garret Gilbert was appointed the freight agent and yardmaster in charge of the plaintiff’s freight business at this point. Large quantities of freight are daily received by the plaintiff over the Canadian Pacific lines and across the International bridge from Canada for transportation to various points in the United States over the lines of said two railway companies; and it has been the custom of plaintiff, to a very large extent, to facilitate such shipments, to have its local freight agent or chief clerk act as customs broker.

Up to the time of the death of Col. Ketchum he performed this service, and as part of the compensation paid him he was to, and did retain the fees therefor. The defendant was at this time clerk in the plaintiff’s freight office at Sault Ste. Marie, Michigan, and was paid a fixed and certain salary for his services. He was also recognized as the customs broker from and after February 12, 1907; turning over the fees collected for this service to Col. Ketchum from time to time. On the appointment of Mr. Gilbert as local freight agent of the plaintiff, on March 1, 1907, following the death of Col. Ketchum, the defendant continued to act as customs broker-, and the fees for such services were collected and remitted from time to time, with a record of the entries made, to the treasurer of the plaintiff at Marquette, Michigan, and report of the same was sent by defendant to plaintiff’s auditor.

Gilbert chose to accept a fixed and certain salary of $175 per month for his services, and thereafter all fees collected were to be remitted to the plaintiff’s treasurer, these remittances to be made, from time to time, in the name of Garret Gilbert, per Edmund Wilson, to which the defendant agreed under the circumstances hereinafter set forth.

• Up to and including November, 1914, monthly statements- purporting to show all entries made and fees collected therefor were sent to the plaintiff’s auditor at Marquette, Michigan, and remittances for each of such monthly statements were sent to the plaintiff’s treasurer at Marquette.

The necessary blanks for the conduct of such business were purchased by the defendant from the collector of customs of the district and the cost deducted from remittances to plaintiff’s treasurer, and the reports to plaintiff’s auditor show the number of blanks and the cost of each, excepting in two instances where there was a shortage of blanks in the collector’s office and the defendant procured two orders for blanks, amounting to $18, from a local printing company, no charge being made to the plaintiff and no deduction being made from the fees collected. Later, and during the year 1914, blanks were furnished on requisitions from the defendant.

At the time the local freight agent, Mr. Gilbert, was appointed, Mr. Fitch, who was then president of the plaintiff company, and Mr. Gilbert went to the freight office where defendant was employed, and defendant was advised by Mr. Fitch that all the customs brokerage work formerly done by Frank E. Ketchum would, in the future, be the work of the defendant; and, because Garret Gilbert was getting a fixed salary for his work, the fees for such customs brokerage work would be remitted to the railway company. These remittances were to be made by the defendant in the name of Garret Gilbert, the local freight agent, and were to be remitted as received, and defendant promised to remit such fees as were earned by him as customs broker, and this agreement has never been changed.

The defendant Wilson was appointed chief clerk and cashier of the plaintiff company on January 6, 1907, at a salary of $90 per month. In February, 1907; he was relieved of the position of cashier, C. E. Barney being appointed to that position, and the defendant continued to act as chief clerk at $90 per month..

A short time later the defendant applied to Mr. Gilbert for an increase in salary, because the duties of Mr. Gilbert as yardmaster took so much of his time away from the office that it necessitated much additional work for the defendant, and Mr. Gilbert, the local freight agent, recommended to Mr. Fitch, who was. then president of the plaintiff, that defendant’s salary be increased to $100 per month, owing to the fact that, together with his ordinary and usual duties, he was required to work longer hours than if he were not compelled to do this work and defendant’s, salary was raised to $100 per month, and continued at this figure for some years, being subsequently raised so that at the time he ceased to be an employee of the plaintiff his salary was $105 per month.

The government did not exact a fee for licensing brokers, and there was no fee or other charge under the act of congress of 1894, and defendant was first appointed customs broker on February 12, 1907, because of the illness of the local freight agent, and defendant had been for some little time making entries and signing the name of Col. Ketchum to the same, and the customs officials at said port refused to longer accept entries of this character.

After the act of 1910 providing for licensing of customs brokers, defendant was, on August 10, 1910, licensed by the United States government as customs broker and continued said work. Under this act no fee was exacted by the government for customs brokers.

The act of October 22, 1914, provides that on and after November 1, 1914, customs brokers shall pay an annual tax of $10. This tax, amounting to $6.70 from November 1, 1914, to July 1, 1915, was paid by the defendant and charged to the plaintiff by deducting the amount from his statement of fees collected for November, 1914.

The total amount of the shortage up. to the time the defendant ceased to be in the employ of plaintiff was $560.60, which sum is made up of the fees collected as customs broker by defendant from and after December 1, 1914, and the amount the defendant from time to time'kept out of his remittances prior thereto, when he was reporting smaller amounts than actually collected. Up to and including June, 1913, defendant remitted the actual amounts received from such fees.

Defendant was in the employ of the plaintiff as clerk at the transfer station and freight office about 21 years, resigning his position about the middle 'of January, 1915. At the time he left the company’s service it refused to pay him his last month’s salary, amounting to $105.

There has been collected and paid over to the plaintiff in brokerage fees earned by the defendant, from March 1, 1907, to the time defendant resigned his position as chief clerk, the sum of $8,984.50.

This action was begun to recover the amount which defendant had retained, and the counter claim was for the amount of fees which had been remitted to the plaintiff.

It is the claim of the plaintiff that by reason of this arrangement it was entitled to retain and have the fees earned by the defendant. On the other hand, it is the claim of the defendant that as he was the customs broker, he was entitled to the fees’ which he had earned, and is entitled to recover from the plaintiff the sum of $8,984.50, together with his month’s salary amounting to $105, and interest on the same.

The trial court directed a verdict in favor of the plaintiff for $457.92, which sum was determined by deducting from the fees retained by defendant ($560.60), his salary of $105 and blanks paid for by him of $18, amounting to $123, which sum being deducted left the amount of $437.60, to which was added interest, $20.32.

The trial court, in its charge directing a verdict among other things, used the following language:

“From the statement of facts, it is evident that the plaintiff is entitled to a verdict unless the contract, by which the defendant agreed to pay the plaintiff the fees earned by him as a customs house broker, is invalid and unenforceable. Defendant’s first contention is that a customs house broker is an officer of the United States, and the contract, being for the assignment of official fees, is void as against public policy. There is no merit in this contention. A customs house broker is not an officer of the United States. He is not appointed by the President, a court of law, nor the head of a department, i. e., a member, of the cabinet (citing the Constitution of the United States and authorities). He is neither elected nor appointed. He exercises his rights by virtue of a license, which is not an investiture of government functions, but the granting of a privilege.
“The act under which he is licensed, negatives any idea of official character.:
“(a) By providing that any citizen of good moral character is entitled to a license. Officers are not so self-constituted.
“(b) By providing for the licensing of copartnerships and corporations as such. A corporate public officer would be an innovation.
“He is invested with no part of the sovereign functions of the government. He is the agent of the importer and deals with the government in that capacity. Moreover, his duties are not analogous to those of an executor or administrator. * * * He may act for whom and so far .as he pleases. The license merely gives him the privilege of entering the goods for those who choose to employ him and for whom he chooses to perform such service.”
“Defendant also contends that the contract was without consideration, there being no new consideration in the way of an increase of salary or position moving to defendant. It could hardly be contended that an increase of duties without a corresponding increase of salary would render the extra work imposed without consideration, and give a right of action for overtime. If so, employers would be unable to change work or add duties to employees without being liable for additional compensation. The continuation of the empioyment is a sufficient consideration for all duties imposed upon an employee, in the absence of agreement or custom allowing overtime, and is certainly sufficient consideration when an express agreement is made to that effect. In any event the relief from the duties of cashier would be a valid and sufficient consideration for the contract at bar.
“Defendant also contends that the contract was ultra vires the plaintiff, (a) because the plaintiff would not be licensed as a customs broker, and (5) because the contract was not within the powers of a railroad corporation. * * * The contract at bar contains no engagements on the part of the plaintiff to do any act for the legal performance of which a license is required, nor does plaintiff assume any of the duties of a customs house broker. It is a personal contract between the plaintiff and defendant with reference only to the fees arising from such employment. * * *
“The character of the employment of a customs house broker is private, as distinguished from public. His intervention is not necessary in the importation of goods, The importer may make his own entry, or may employ any broker who has a license. The broker is paid by the importer, and is, as a matter of fact, his agent for the single transaction or entry. He performs no duties on behalf of the public, and the public is not concerned about his fees. There are no considerations of public policy intervening which would affect the disposition of his earnings. His services stand upon no other basis than any other private employment.
“While exception is made in the salaries of public officers and certain fiduciary officers, it is settled that an assignment of wages or earnings to be earned in the future, when coupled with an interest by virtue of a subsisting contract of employment, is valid. Rodijkeit v. Andrews, 5 L. R. A. (N. S.) 565 (74 Ohio St. 104).
“If the contract between the plaintiff and defendant be considered an assignment, it would appear to be valid under the above decision, as it does not come within the excepted class.
“But, in my judgment, the transaction more properly falls within the general rule that, all the time and labor of the employee belongs to the employer during the hours of service and the master is entitled to the earnings of the servant earned outside his employment during such hours. While there are numerous exceptions to this rule, it is recognized that an express contract to that effect is valid and enforceable. 26 Cyc. p. 1020; Barber v. National Carbon Co., 5 L. R. A. (N. S.) 1154 (129 Fed. 370).
“A corporation has within the express or implied powers of its charter the same authority to contract as has a natural person'. It has the right to employ servants and to contract with them as to their duties and compensation. In the case at bar, then, under the authorities above stated, the contract at issue is valid, and the plaintiff is entitled to recover the withheld, brokerage fees unless such a contract is ultra vires, express and implied, of a railroad corporation. * * *
“The rule as now stated, upon the doctrine of ultra vires, is as follows:
“ ‘Tlie implied powers of a corporation are not limited to such as are indispensably necessary to carry into effect those expressly granted, but comprise all that are necessary, in the sense of being appropriate, convenient and suitable, for such purposes, including tbe right of a reasonable choice of means to be employed.’ 10 Cyc. p. 1097.
“ ‘Whatever may fairl. be. regarded as incidental to, and consequential upon, the things which are authorized by the charter of a corporation, will not be held-by judicial construction to be ultra vires, unless expressly prohibited.’ 10 Cyc. p. 1098; Jacksonville, etc., Navigation Co. v. Hooper, 160 U. S. 514.
“Thus, while the railroad company would not be entitled to engage in the independent operation of a hotel or the maintenance of a warehouse for the storage of goods, it may provide hotels and eating houses and elevators when they are reasonably connected with the comfort of passengers and employees, or the convenience of shippers over the company’s lines. Western Maryland R. Co. v. Hotel Co., 2 L. R. A. (N. S.) 887, note (102 Md. 307); Louisville Property Co. v. Commonwealth, 38 L. R. A. (N. S.) 830 (146 Ky. 827).
“The- rule prevailing in Michigan is stated in Ely v. Oakland Circuit Judge, 162 Mich. 466, 471:
“ ‘The doctrine of ultra vires cannot be applied to contracts not prohibited, either expressly or by necessary implication, in the statute.’
“In Timm v. Brewing Co., 160 Mich. 371, it was held that a brewing company may further its business by giving a bond to secure sureties on a liquor dealer’s bond of one of its customers, and the contract is not ultra vires, nor outside the scope,of its business. The court' there said:
“ ‘Under the well settled rule, the defendant had implied power to do those things necessary and helpful to the conduct of its authorized business.’ ”

See United States Brewing Co. v. Dolese & Shepard Co., 47 L. R. A. (N. S.) 898 (259 Ill. 274), note.

“There is nothing immoral, criminal nor malum prohibitum in the contract in question. The plaintiff abnegates none of its public duties, and as the contract affects only the parties to it, no considerations of public policy enter into the agreement. It is not expressly prohibited by plaintiff’s charter, nor can there be said to be an implied prohibition unless the contract amounts to such a departure from the statutory. business of the plaintiff as to be a perversion of its legal functions.
“It is undoubtedly the law that if the employment of a customs broker were so entirely unconnected with the business of the plaintiff as to amount to an entirely independent undertaking, apart from the purpose of a corporation, the plaintiff could not enter into such a contract.
“The agreed statement of facts recited:
(IV) “ ‘It has been the custom of the company to a very large extent to facilitate such shipments (over its own line or over the Soo line, with which it maintains a joint freight office at Sault Ste. Marie), to have its local freight agent or chief clerk in the local freight office, act as customs broker.’
“The business of plaintiff under its charter is the carrying of passengers and the transportation of merchandise. In furtherance of such business it has the right to maintain with the Soo Line a joint freight office under such arrangements as may be agreed upon. The primary effect of defendant’s employment was to continue his service as chief clerk. So much of the contract was entirely within the authority of the plaintiff. In addition to this, defendant’s employment as a customs broker so far as it pertained to goods shipped over plaintiff’s road, operated for the convenience of its shippers and the facilitation of its freight service, was thus directly connected with the express business of the plaintiff to transport goods, and was within its implied powers to help its authorized business. * * *
“But aside from the proposition of whether the contract was ultra vires, no matters of public policy being involved, it is the rule that where a contract has been performed on one side, the other party is estopped from setting up the defense of ultra vires. The rule operates not only as against the corporation, but also in favor of the corporation as against the other party. 10 Cyc. p. 1160.
‘Parties may also be estopped in some eases, from disputing the validity of a corporate contract when it has been fully performed on one side, and when nothing short of enforcement will do justice. To quote the language of Comstock, C. J., in Parish v. Wheeler, 22 N. Y. 494, 508:
“ * “The executed dealings of corporations must be allowed to stand for and against both the parties, when the plainest rules of good faith so require.” ’ Day v. Buggy Co., 57 Mich. 151.
“ ‘The plea of ultra vires should not as a general rule prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong.’ Timm v. Brewing Co., 160 Mich. 371, 374.
“See, also, cases cited in plaintiff’s brief, and Blackwood v. Chamber of Commerce, 178 Mich. 321, 324.
“The contract at bar was fully understood by the parties. It was performed in all respects for six years. Defendant has received certain raises in salary and relief from other duties on account of his work under the contract. He performed his work thereunder on the time which belonged to the plaintiff and which the plaintiff paid him for. That he fully recognized his obligation to turn over the brokerage fees to the plaintiff is shown by the surreptitious manner in which he retained them. The contract has been fully performed by the plaintiff. All obligations have been fulfilled except those of the defendant. Justice would not be served by permitting defendant to retain all the benefits of a performance of the contract by the plaintiff and all the benefits of a breach of it by himself. He is estopped from now claiming the contract to be ultra vires.”

Judgment having been entered upon the verdict, the defendant entered a motion for a new trial based upon the following reasons:

_ 1. The court erred in holding that plaintiff was entitled to recover from defendant the fees which he had earned as a customs broker.

2. The court erred in holding that it was not ultra vires for plaintiff to hire a man and require him to do the customs brokerage business.

_ 3. The court erred in holding that there was a consideration for the claimed contract requiring defendant to turn over his customs brokerage fees.

4. The court erred in rendering judgment for plaintiff when the testimony shows that the Minneapolis, St. Paul & Sault Ste. Marie Railway Company was equally interested with plaintiff, and was not a party.

The trial court filed its reasons for denying said motion, and in disposing of the fourth reason the following was said:

“The court did not err in rendering judgment for the plaintiff, as claimed in the fourth ground of the motion to set aside judgment, because it appears from the statement of facts that the contract made with the defendant for the accounting for his brokerage fees was made by the plaintiff and all of the dealings of the defendant relative to such brokerage fees were had with the plaintiff.
“The arrangement made between the plaintiff and the Minneapolis, St. Paul & Sault Ste. Marie Railway Company are of no consequence in determining the liability of the defendant to the plaintiff for such fees. The question of the interest of the M., St. P. & S. S. M. Ry. Co. in this suit was first presented in the present motion. Aside from the question of its not being of any consequence in this cause, it appears to the court that the non-joinder should have been raised in a different way.”

Defendant duly excepted to the denial of the motion, and has brought the case here upon writ of error; and error is assigned upon the several rulings discussed.

In this court it is not claimed by defendant that he was a public officer; but it is his contention that there was no contract entered into between himself and the plaintiff, which would constitute a legal assignment of his fees. And that if there was a contract entered into it was ultra vires, because a railroad company cannot enter into a customs brokerage business.

In passing the question of a public officer, it may be said that upon its facts, the instant case is readily distinguished from the case of Bailey v. Quarry Co., 166 Mich. 321, where the salary of a postmaster was involved. • •

We are of the opinion that the cases cited by defendant relating to the contract and the rule governing assignment of his fees or earnings, do not apply to the facts here shown. It is rather a case where an agreement was made as. to the manner in which fees earned by defendant should be disposed of, and therefore not void as against public policy. McGregor v. McGregor, 130 Mich. 505, and cases there cited. If the rule there stated could apply to a public officer, much more is it applicable here.

We agree with the learned circuit judge that the transaction in the instant case, “more properly falls within the' general rule that all the time and labor of the employee belongs to the employer during the hours of service,” especially where, as in the instant case, “the defendant promised to remit such fees as were earned by him as customs broker, and this agreement has never been changed.” In our opinion there is no. question of public policy here involved. We have examined Deaton v. Lawson, 2 L. R. A. (N. S.) 392 (40 Wash. 486), State v. Norton, 67 Iowa, 641, and kindred cases cited by defendant, but do not think them pertinent here.

It is manifest that the contract in question contained no engagement on the part of the plaintiff to do anything, for which a license was required. It assumed .none of the duties of a customs broker. The contract was between the plaintiff and the defendant with reference to the disposition of the fees arising from such employment.

If it were to be held that the contract amounted to an assignment, it was valid.

“An assignment of wages to be earned in the future, under an existing contract, is valid.” Rodijkeit v. Andrews, supra, and cases pited, including Michigan cases. •

Upon the subject of ultra vires, we do not deem it necessary to add to what was said by the learned circuit judge in his charge, except to note the fact that the defense of ultra vires was not pleaded in the instant case. See collection of Michigan authorities upon the subject, as well as upon the general doctrine applicable to like situations, in Blackwood v. Chamber of Commerce, 178 Mich. 321.

An examination of the authorities cited and of the charge of the court, satisfies us that there is no error in the record, and the judgment below is affirmed with costs to appellee.

Osteandee, C. J., and Bied, Mooee, SteeeE, Beooke, and Fellows, JJ., concurred. Kuhn, J., did not sit.


text:
    ZEIGEN v. ROISER.
    1. Husband and Wife — Estates by Entireties — Conveyances— Interest in Hand.
    An assignment of a contract interest in land, held by a husband and wife by the entireties, signed by the husband alone, is void.
    2. Specific Performance — Contract to Convey — Exchange of Property — Equity—Burden of Proof.
    In proceedings for the specific performance of a contract to exchange equities in land contracts, where, there is an irreconcilable conflict in the testimony of the various parties, evidence examined, and held, to sustain the finding of the court below that plaintiff had failed to sustain his ease by the burden of proof.
    Appeal from Oakland; Smith, J.
    Submitted January 18, 1918.
    (Docket No. 152.)
    Decided March 27, 1918.
    Bill by Frederick H. Zeigen against Charles H. Roiser and wife, Florence S. Fox, and others, for the specific performance of a land contract. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Jerome Probst and Pelton & McGee, for plaintiff.

      Covert & Campbell, for- defendants Roiser.

      Charles R. Robertson, for defendant Fox.
   Stone, J.

This case presents mainly questions of fact, which are much in dispute.

1. By his bill of complaint, plaintiff claims that in March, 1914, he was the owner of the interest of the vendee in a certain land contract made in 1906, by Henry F. Barnard of the first part, wherein and whereby said Barnard agreed to sell and convey to one Susan Gibbs, as party of the second part, certain described lots known as Nos. 74-76 Prentis avenue, in the city, of Detroit — said land contract being duly assigned to the plaintiff.

2’. That in January, 1912, John Rich and wife, as parties of the first part, had made a certain land contract with the defendants Charles H. Roiser and Alice L. Roiser, his wife, of the second part, wherein and whereby said Rich and wife had agreed to sell to said defendants a certain parcel of land in the township of Royal Oak, county of Oakland, known as the 20-acre tract, duly described, on section 33 of said township.

3. That, on or about March 1, 1914, negotiations were entered into by and between the plaintiff and said defendants Roiser and wife, for the purpose of exchanging the equity of the plaintiff in said Prentis avenue property, for the equity of said defendants in said 20-acre tract in Royal Oak township, aforesaid; that such negotiations continued until on or about March 15, 1914, when they orally agreed to exchange said equities in said properties, said defendants Roiser and wife to take said Prentis avenue property, subject to an unpáid balance on said Barnard contract of $13,000 which they assumed and agreed to pay, and plaintiff to take said land in Royal Oak township subject to $3,500 unpaid upon said Rich contract. Each party to furnish abstracts.

4. That afterwards and on or about March 20, 1914, and in pursuance of the aforesaid verbal agreement, said defendants Roiser and wife, delivered to the plaintiff the aforesaid Rich contract, together with an assignment of said contract by said defendants Roiser and wife to the plaintiff, attached to and made a part of said contract, and a copy of the said assignment, signed by the said parties is set forth.

5. That at the time of the delivery of said Rich contract and assignment thereof to the plaintiff, he delivered said Barnard contract duly assigned to said defendants Roiser and wife; but that at the request of said defendants said Barnard contract with assignment was returned and delivered to the plaintiff for safe keeping until abstracts should be furnished of said respective properties, and the titles made good.

6. That afterwards, it appearing that there would be some delay in getting said, abstracts perfected, a written memorandum was made between said defendant Charles H. Roiser, acting for and on behalf of himself and wife, and the plaintiff, evidencing the terms and conditions of their said verbal agreement to exchange, as aforesaid, as to the furnishing of abstract and making good title to said properties, as well as in the settlement of differences on said exchange, specified in said oral agreement, a copy of which agreement, bearing date April 4, 1914, was attached to the bill of complaint, and being recorded in the office of the register of deeds of Oakland county, April 28, 1915.

7. That on or about December 10, 1914, said defendant Charles H. Roiser called at the office of the plaintiff, and asked to have said Rich contract a few days for the purpose of having said Rich indorse thereon all payments made thereon, so as to know the exact figures, and be able to figure the differences on said exchange, promising to return said contract, with all payments duly indorsed thereon, to the plaintiff, in a few days thereafter; that, relying upon said statement and promise, the plaintiff loaned said contract to said defendant Roiser; that about a week thereafter the plaintiff met and asked said defendant about the return of said contract, and he replied that he had been unable to find said Rich at home, but would do so soon, and would return said contract to the plain- • tiff within a week or two thereafter; but that he has never returned said contract to the plaintiff, but, on the contrary, said defendant Charles H. Roiser, after tearing off said assignment thereof to the plaintiff, delivered said contract to the defendants A. O. Greenough and John J. Hagelstein, to whom said defendants Roiser and wife sold said 20-acre parcel on or about December 10, 1914. That said reason was a mere pretext; that at said time said Roiser had received an offer of a higher price for said land, and planned to obtain said contract and assignment thereof from the plaintiff by deceit and trickery. That the plaintiff has repeatedly asked said defendant Roiser for said contract, but he has refused to return the same.

The bill alleges that on or about November 17, 1915, said Rich, then a widower, executed and delivered to defendants Charles H. Roiser and Alice L. Roiser a warranty deed of the Royal Oak property in fulfillment of said contract; that on the same day said defendants deeded said premises to defendants Greenough and Hagelstein, and that the last-named defendants on the same day conveyed said property to defendant Florence S. Fox. That said purchasers had notice of plaintiff’s rights and interest in said land, or knowledge of facts sufficient to put each of them, on notice as to plaintiff’s rights therein; that said last mentioned deeds were collusive and merely pretended,, for the purpose of placing said land beyond the reach of the plaintiff, and that defendant Fox took said deed to her as a mere “dummy,” and holds the same in trust for the other defendants; that very little money changed hands on said transfers, the pretended purchase prices being paid largely with mortgages, the amounts of which are set forth.

The bill further alleges that defendant Roiser and wife furnished plaintiff only the original abstract, which was not perfected; that the plaintiff was satisfied with the title; that he furnished the said defendant Roiser with an abstract of said Prentis avenue property; that he expressed himself as satisfied with the same, and that the said exchange had been closed so far as the plaintiff was concerned, excepting only as to the figuring up and adjusting on a cash, or other satisfactory basis of the difference of taxes, interest on said properties, and balance unpaid on said contracts; and that plaintiff has been ready, able and willing to perform all things by him to be performed under said agreement; but said Roiser and wife refused, and still refuse, to arrange said difference according to said contract, and refuse to return said Rich contract with assignment thereof to the plaintiff, as agreed.

It is further claimed that all agreements to sell said premises to the other defendants, as well as said deeds, were subject to the prior sale by said defendant Roiser and wife to the plaintiff of said property.

The bill prays that an accounting may be had and taken of the difference to be paid by said parties on their said exchange, so as to make the land contract on said Prentis avenue property leave an unpaid balance of $13,000, and to leave an unpaid balance on said Rich contract of $3,500, according to said agreement to exchange said properties; also of the difference to be paid on and for taxes on said exchange to carry out the terms thereof.

That said Charles H. Roiser and Alice L. Roiser be required to surrender and deliver to the plaintiff said Rich contract with said assignment thereof, and that the plaintiff be declared to be the owner and holder of said contract, and of said land subject to the payment of said $3,500 with interest, which the plaintiff thereby offers to pay.

That the defendant Fox be required to execute and deliver to the plaintiff a deed of said land, and that the deeds and mortgages above described (excepting only said deed from Rich to Roiser) be declared null and void and wholly inoperative as against the plaintiffs rights in the premises.

He prays for an injunction restraining defendants from conveying or mortgaging said land, and for general relief.

The answer of the defendant Charles H. Roiser denies each and every allegation of paragraphs 2, 4, 5, 6 and 7 of said bill of complaint, and alleges an entirely different state of facts relating to his dealings with the plaintiff. He avers that on the 4th day of April, 1914, he borrowed from plaintiff the sum of $150, and at the same time gave to plaintiff his 30-day note therefor, a copy of which note was attached to the answer. That at the time of the making and delivering of said promissory note said defendant left with the plaintiff, as collateral security for said loan, said Rich contract, and that said defendant received a receipt for said land contract from the plaintiff which remained in the possession of the plaintiff up to the time of the payment of said promissory note, on to wit, the 21st day of December, on which said date said Rich contract was returned and delivered to said defendant by the plaintiff. That on the same date said defendant and his wife borrowed the sum of $600' from one William Lakin, and gave to said Lakin a 90-day promissory note, and as collateral security to> said Lakin, said defendant and wife deposited said Rich contract with said Lakin, and that said land contract remained in the possession of said Lakin approximately up to the time of the sale of the premises to said Greenough and Hagelstein.

He admits that on April 4th he alone entered into a written agreement with the plaintiff to exchange the interest of said defendant in said premises described in the Rich contract for the interest of said plaintiff in said Barnard contract; that at the time of the execution of said agreement between this defendant and the plaintiff for the exchange of said properties, this defendant had it in mind that if said premises, known as No. 74-76 Prentis avenue, were as represented by the plaintiff, this defendant would then take the matter of the exchange of said properties up with his said wife, Alice L. Roiser, and would endeavor to induce her to join him in an agreement with the plaintiff for the exchange of said properties; that the said plaintiff then had in his possession the said Rich land contract, and well knew that the said land1 contract was for the purchase of said property by this defendant and his wife, Alice L. Roiser, by entirety, from said Rich and wife; and said plaintiff well knew at the time of the execution of said agreement of April 4th, that this defendant could not make any binding agreement in reference to the proposed exchange of said property; that said agreement was merely a preliminary one; that plaintiff then owed upon said Barnard contract a balance of about $13,900; and later said plaintiff repeatedly stated to this defendant that he could not arrange the payment of said $900 on said land contract, and admitted that it was not in his power to carry out his terms of said agreement, and finally suggested to said defendant that a new agreement be entered into between them for the exchange of other property for said Rich contract, but that said deal was never consummated; and that the plaintiff from the time of the payment of said promissory note, on said 21st day of December, 1914, treated said agreement of April 4th as of no further force and effect.

That this plaintiff, as complainant, filed a bill of complaint in the circuit court for the county of Oakland, in chancery, against this defendant alone, to enforce specific performance by this defendant of said agreement of April 4, 1914; that said case was put at issue, but was later discontinued by the complainant.

In that bill of complaint no reference was made by the plaintiff to any assignment of said contract, nor was any claim made that said defendant Roiser and wife had ever signed any assignment of said Rich contract to the plaintiff; but that later, and on February 7, 1916, the present bill of complaint was filed, in which, for the first time, reference was made to the assignment of said contract; that the plaintiff at all times knew that the land contract for the purchase of said Rich premises was held by entirety by this defendant with his wife, Alice L. Roiser, and that the same was occupied by them as a homestead, and that it was not in the power of this defendant to convey alone any interest in said premises.

The separate answer of the defendant Alice L. Roiser consists of a general denial of the main allegations of the bill of complaint.

The answer of the other defendants is to the effect that they are bona fide purchasers, without notice, of said premises.

From what we have stated it is very apparent that the crucial and decisive question in the case is whether the defendant Alice L. Roiser ever signed the assignment of the Rich contract with any intention of exchanging the property therein described for the plaintiff’s equity in the Barnard contract.

There is great conflict in the evidence in the case, the parties not agreeing upon any material matter.

The learned circuit judge, who heard the evidence and saw the witnesses, found that there was so much uncertainty surrounding the signing and execution of said assignment by defendant Alice L. Roiser that he would not pass a decree against her,' and that there was nothing else in the case binding her to carry out an exchange of the properties; and, it being conceded by plaintiff’s counsel that a decree should. not pass against any of the defendants unless Mrs. Roiser was included, he dismissed the bill of complaint, without prejudice to the plaintiff to bring an action at law against the defendant Charles H. Roiser. The plaintiff has appealed.

The testimony in the case is voluminous, but we have read the same with care, as well as all of the documentary evidence. Upon the hearing of the cause it was the claim of the defendants Charles H. Roiser and Alice L. Roiser, and they gave evidence tending to support the claim, that they were the occupants of said premises in Royal Oak township and had an equity therein, and that the plaintiff had an equity in the premises known as 74-76 Prentis avenue, with an apartment house thereon. It also appeared that the plaintiff owned some real estate next to the Roiser homestead in Royal Oak township, and had previously made a contract with Roiser to handle the same. There is no question that there was an interview between the plaintiff and Charles H. Roiser in the latter part of March, having in view an exchange of these properties. It was the claim of the defendant Charles H. Roiser that at this time his contract was in the hands of one Bolles, who had an agreement with defendant Roiser and his wife for the purchase of the property, dated in October, 1913. At the time the negotiations concerning the exchange of said properties were in progress, it became necessary for Roiser to borrow some money to pay some interest on an indebtedness of his to avoid the foreclosure of a mortgage. It is his claim and that of the witness Bolles, that he went to Mr. Bolles and obtained possession of the said Rich contract; that on the day following, to wit, April 4th, Roiser borrowed from the plaintiff $150, the same being represented by a check on the Peoples State Savings Bank.payable to the order of Charles H. Roiser, and signed by Zeigen Construction Company, Frederick H. Zeigen, Manager. This loan was evidenced by a note given by Roiser to the plaintiff for said sum, dated April 4, 1914, payable 30 days after date, across the end of which was written: “Land Contract on S. W. Cor. of E. % S. E. % of Sec. 33, Royal Oak Twp. assigned as collateral.”

Roiser also testified that he deposited with the plaintiff the Rich land contract which he had received from Bolles the day before, as collateral security for said loan and took plaintiff’s receipt fofi the same, dated April 4, 1914, reading: “Received of Chas. Roiser. Land contract on N. E. cor. Mill road and Eight-Mile road, as collateral security for note of $150,” and that he delivered to the plaintiff a blank assignment which he had some time before cut from a Burton contract, and had had his wife sign in blank in case Mr. Bolles needed it to complete any deal which he might make; that this assignment was in blank with the exception of the name of Alice L. Roiser, and that he, Roiser, added his signature to it before turning it over to the plaintiff; that at the time it went out of his hands it had simply the two signatures upon it, and, except the printing, there was no other writing thereon. He claims that it was the intention that this contract was to be in the hands of the plaintiff as collateral for said loan only. It is not denied by the defendant Charles H. Roiser that on the same day, April 4,1914, he alone had the negotiations with the plaintiff in relation to the proposed exchange of properties which culminated in the agreement of that date; Mrs. Roiser not being a party thereto or in any other way alluded to in said contract. He further testified that the note was given for the loan of $150, and did not have anything to do with the balancing up of differences on the proposed exchange of property. He further testified that the plaintiff never tendered to him any assignment of his interest in the Prentis avenue property, and never tendered to, or showed him any abstract of that property; and that the plaintiff never afterward told him that he was ready to go on with the deal.

It further appears that under date of November 27, 1914, the plaintiff, upon one of the letter-heads of his company, wrote to the defendant Charles H. Roiser a letter stating:

“Your note for $150 is long overdue, and as there does not seem any hope of making other arrangements, kindly call and pay same or sign a new and regular banking collateral note to replace the other.”

Roiser also received letters from plaintiff dated December 8 and 17, 1914, reading, respectively, as follows :

, “Kindly call at this office and sign note. If you do not do this we will have to take necessary steps to foreclose previous note.”

The other:

“Kindly call at once with that note, must have it today so I can square up my books.”

Inclosed with one of said letters was an unsigned collateral note dated December 1, 1914, for the sum of $150 payable 30 days after date, to the order of Fred H. Zeigen, and mentioning the deposit and pledge with him, as collateral security for the payment of said note and any other indebtedness, the Rich contract. These letters were on letter-heads of the Zeigen Construction Company, and signed by typewriter.

It appears that on December 21st, Roiser paid the $150 and interest by a check for $158, dated December 21, 1914, and it is the testimony of the defendant' Roiser that at that time the Rich contract was returned to him by the plaintiff; that he did not open said contract at the time it was returned to him, but on his return home he opened it and found the assignment filled out and attached to it by glue. Roiser claims that he then, in the presence of his wife, tore off the assignment from the Rich contract, and soon thereafter he assigned it to William Lakin, from whom he borrowed money.

It is undisputed that on July 8, 1915, the plaintiff, as complainant, filed a bill of complaint against the defendant Charles H. Roiser alone, for the specific performance of the contract of April 4, 1914. Mrs. Roiser was not made a party thereto, nor was there any allusion to the claim that an assignment had ever been madé or signed by her.

Upon learning the fact that Mrs. Roiser had not been a party to said contract, that suit was discontinued. There is no question that during all these claimed negotiations the plaintiff knew that the interest of the defendant Roiser and wife in the premises described in the Rich contract was that of owners by the entireties, and that the said premises were at all times occupied by said defendants as a homestead.

The defendant Mrs. Roiser testified that she had had no acquaintance with the plaintiff, and had never seen him until the hearing. He had testified that he knew her and had called at the said defendants’ home on the premises in Royal Oak township and had talked with her about the exchange of the properties. She was shown the said assignment; the following occurred: ,

“Q. Now, I hand you exhibit 2 which has your name, Alice L.’ Roiser, on it, and will ask you if that is your signature?
“A. Yes, sir. At the time I signed it, it had nothing but my signature and the printing. It, exhibit 2, at that time was a paper by itself, and was not attached to any other paper.
“Q. Now I show you a place on exhibit 1 (Rich contract) where it purports to be attached. Was exhibit 2 pasted on exhibit 1 when you signed it?
“A. It was not.
“Q. Was the land contract, exhibit 1, present when you signed that?
“A. It was not. I did not sign exhibit 2 with any intention of transferring to Fred H. Zeigen any interest in our property, the 21-acre farm.
“Q. Did Mr. Roiser, your husband, say to you when he asked you to sign this what he was going to do with it?
“A. He thought he might need my signature to borrow $150 from Mr. Zeigen.
“Q. Was his signature on there when you signed it?
“A.- No, sir. I remember seeing exhibit 2 attached to exhibit 1 after Mr. Roiser brought it back from Mr. Zeigen. He did not know it until he got it in the house. He opened it in front of me and found out. That was about April 4th; I think it was on the 3d.
“Q. When you say Roiser brought exhibit 2 attached on the contract exhibit 1, was it before or after the note for the money had been paid? (No answer.)
“Q. Did you know about borrowing this $150.
“A. Yes, sir. Mr. Roiser did not have the note with him, exhibit D, when he showed me exhibit 2.
“Q. Do you know whether he showed you the note at that time?
“A. I don’t remember.”

There is no claim that any consideration passed to Mrs. Roiser. The claimed assignment of the Barnard contract was to Charles H. Roiser alone. The plaintiff’s testimony tended to support the allegations of Ms bill of complaint.

There is an irreconcilable conflict in the testimonsr of these various parties. It is manifest that there was either false testimony, or that some of the witnesses were at least greatly mistaken in their testimony. The circuit judge saw these witnesses and heard them testify. There are some things in the conduct of the parties which have controlling influence in disposing of the case. The plaintiff appears to be a man of intelligence and acquainted with business affairs. He was a prolific letter writer and put in evidence many of his own letters, which were self-serving in their character, and have no probative force.’ His conduct in filing the first bill of complaint against the ‘defendant Charles EL Roiser alone, without making any claim that he had, or ever had had in his possession, any assignment of the Rich contract signed by Mrs. Roiser, is very significant. It is almost inconceivable that a man possessing his acquaintance with real estate affairs, and knowing as he did that the premises were held by said defendants as tenants by the entireties, that he should not have seen and appreciated the importance of alleging the possession of the assignment of Mrs. Roiser if he supposed at that time any such paper was in existence, or that it was intended to be used in the proposed exchange of properties.

Full faith and credit cannot be given to the testimony of these parties as a whole upon either side; but, after a careful examination of the entire record, we find ourselves in so much doubt as to whether Mrs. Roiser ever signed the assignment with the intention that it should have the effect of assigning to plaintiff the Rich contract, in exchange of that property for the Barnard property, that we are constrained to agree with the trial court in holding that the plaintiff has not sustained the burden of proof resting upon him, and that the decree below should be affirmed.

It is hardly necessary to refer to authorities in support of the proposition that property held as this property was, could not be conveyed, or any interest therein conveyed without the wife joining with the husband. We need cite but a single case, that of Auditor General v. Fisher, 84 Mich. 128, and cases there cited, where it is held, in substance, that the interest of a husband and wife in a land contract in which their names appear as vendees, is an entirety and not a tenancy in common. This view of the case renders it unnecessary to consider whether the other defendants are bona fide purchasers or not of these premises.

There are innumerable circumstances upon both sides which we have considered and that might be referred to, but it is sufficient to say that, in our opinion, the plaintiff has failed to make out a case against defendant Alice L. Roiser, and that the decree below should be affirmed with costs to the defendants.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


text:
    PEOPLE v. WILLIAMSON.
    1. New Trial — Appeal and Error — Exceptions.
    A motion for a new trial, where the record is silent as to its disposition, and there are no exceptions to any refusal to grant'such motion, will not be reviewed by the appellate court.
    2. Criminal Law — Carrying Concealed Weapons — Intent.
    The intent required to make one punishable under the statutes against carrying concealed weapons, is an intent to do the act prohibited, viz., to carry weapons concealed upon the person; the ultimate purpose being immaterial.
    3. Same — Trial—Concealment—Intent—Instructions—Gist op Offense.
    In a prosecution for carrying concealed weapons under Act No, 274, Pub. Acts 1911, as amended (3 Comp. Laws 1915, § 15236), where the court, in his charge to the jury, repeatedly called their attention to the question of concealment, asking, “Did the defendant have the gun on his person concealed as stated by the people’s witnesses?” it is not open to the objection that the court did not sufficiently define the offense' charged, since concealment implies an assent of mind and purpose.
    4. Same — Loaded Weapon — Gist of Ofeense.
    The authorities are agreed that a revolver or pistol need not he loaded to come within the statute against carrying concealed weapons.
    Error to the recorder’s court of Detroit; Jeffries, J.
    Submitted January 17, 1918.
    (Docket No. 189.)
    Decided March 27, 1918.
    Robert Williamson was convicted of carrying concealed weapons and sentenced to imprisonment for not less than six months nor more than two years in the Detroit house of correction.
    Affirmed.

      A. W. Sempliner and P. W. Grose, for appellant.

      Alexander J. Groesbeek, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Be Witt H. Merriam, Assistant Prosecuting Attorney, for the people.
   Stone, J.

The defendant was convicted in the recorder’s court of the; city of Detroit of the offense of wilfully and unlawfully going armed with an offensive -and dangerous weapon, to wit, a revolver concealed upon his person at the city of Detroit on April 13, 1917, not. then and there having a license to go armed, in violation of the provisions of section 15236, 3 Comp. Laws 1915, being Act No. 274 of the Public Acts of 1911, as amended; the title of the act being in part as follows:

"An act to prohibit the sale, keeping for sale, loaning, giving away or carrying of certain dangerous weapons; to prevent the carrying of concealed weapons except in certain specified cases when a license is issued therefor; to provide punishment for the violation of the provisions hereof,” etc.

The provisions of said section applicable to the case are as follows:

“It shall be unlawful for any person, except as hereinafter provided, to go armed with a * * * revolver * * * or other offensive and dangerous weapons or instruments concealed upon his person.”

Upon the trial of the case the sole testimony (except that of the proper officer that no license to carry concealed weapons had been issued to defendant) was that of a police officer who testified that he arrested defendant about 3:10 p. m. of April 13, 1917, in the city of Detroit. And further:

“I searched him and found that gun on him. (Gun produced and marked exhibit 1, and offered in evidence.) He had the gun in his inside pocket on the right-hand side of his coat. The pocket was a short pocket, up high. I could not see it. I asked him what authority he had to have a revolver. He said .he had no authority. He had a badge on, ‘Metropolitan Detective Agency/ He said there was a foreigner down there going away with some woman.”

On cross-examination the witness testified:

“I examined the. gun as soon as I saw it. It was not loaded, and he did not have any cartridges upon his person.”

Thereupon the people rested, and there was no evidence offered on behalf of defendant.

Among other things, the trial court charged the jury as follows:

“Now, gentlemen, the law prohibits any person from carrying any weapon that is a dangerous weapon, such as a dagger, sword, pistol, revolver, metallic-knuckles, pocket-billy, sand-bag, skull-cracker, slung shot, razor, without a permit; in fact, no person is allowed to carry any weapon that is concealed, without a permit, coming within the meaning of the statute. * * *
“Now this is a very simple issue in this case. Did the defendant have the gun concealed as stated by the people’s witness, and if he did, did he have a permit to carry a gun, or to carry one from the proper authorities? If you find that he had this gun on his person concealed as testified to by the people, and you believe that beyond a reasonable doubt, it makes no difference, gentlemen, whether it is, loaded or unloaded. If you believe that it (the gun) was found upon his (respondent’s) person, as testified to by the people, and you believe, further, beyond a reasonable doubt, that he had no permit to carry this gun, then your duty, gentlemen of the jury, if you believe that beyond a reasonable doubt, is. to convict this defendant on the charge in the information. * * *
“I will charge you, gentlemen of the jury, that as a matter of law, that it makes no'difference whether the gun was loaded or unloaded. If you find that he was carrying it, and carrying it concealed,' as I told you, beyond a reasonable doubt, it is your duty to convict him; if you further find, as I have already said to you, that he had no permit to carry one.”

There was a motion to direct a verdict of not guilty for the reason that the weapon was not loaded, and that no harm was intended, and that it was not a dangerous weapon, which motion was refused.

After defendant’s conviction he was sentenced to be confined in the Detroit house of correction for a period of not less than six months nor more than two years, with a recommendation that he serve six months. There was a motion for a new trial; but the record is silent as to whether the motion was ever heard or not, and there are no exceptions to any refusal to grant such motion. We cannot, therefore, consider such motion.

The defendant has brought the case here upon writ of error, and error is assigned upon the parts of the charge above set forth. Also, that the court erred in refusing to direct a verdict of not guilty on the ground that there was no evidence that the defendant did go armed with a dangerous weapon, and, also, upon the ground that the weapon was not loaded, and was not a dangerous weapon.

Counsel for defendant contend that a distinction should be made between “carrying a concealed weapon” and “going armed with a concealed weapon.” In our opinion, if a person knowingly carries a dangerous weapon concealed upon his person, he is, within the meaning of the statute, going armed with a dangerous weapon concealed upon his person.

It is also urged that under the statute a material element of the offense is the unlawful or felonious intent with which the weapon is carried, and that no such intent was shown in the case. The farthest any of the authorities go, is that the intent required to make one punishable under the enactments against carrying concealed weapons, is an intent to do the act'prohibited by the statute, viz.: to carry weapons concealed upon the person, and that the ultimate purpose is immaterial. See 5 Am. & Eng. Enc. Law (2d Ed.), p. 734 et seq., and cases cited in notes.

While there is a diversity of holdings in the different States, depending largely upon varying local statutes, the great weight of authority is to the effect that the intent, or purpose with which the weapon is carried, is not an element of the statutory offense. Of course, if the weapon was carried upon his person through restraint or ignorance, that would be a good defense to the prosecution. But nothing of that kind is claimed in the instant case. The following cited cases are in point upon this question: State v. Williams, 70 Iowa, 52; Walls v. State, 7 Blackf. (Ind.) 572; Ridenour v. State, 65 Ind. 411; Cutsinger v. Commonwealth, 70 Ky. 392; Strahan v. State, 68 Miss. 347.

In the last cited case, the sheriff gave-his pistol to defendant for the purpose of having it repaired. Defendant was accustomed to do such jobs, and after receiving the pistol carried it to his home two or three miles distant, and afterwards at the owner’s request brought it back. While on his way, he carried the pistol in his pocket for the sake of convenience. The trial court refused an instruction asked by defendant that the jury should acquit, under the foregoing facts. It was held by the supreme court that the trial court properly refused the instructions asked by the defendant, and that the verdict of guilty was sustained by the evidence. The court said':

“The defendant did the act forbidden by the statute, which makes the prohibited fact and not the intent criminal.” Citing cases.

In State v. Martin, 31 La. Ann. 849, it was held that on the trial of an accused for carrying a pistol concealed on his person, the evidence to show that the pistol belonged to another, that the owner placed it in the hands of the accused merely to get cartridges for it, and that the accused owned no pistol and had never been known to carry one, was not admissible.

“The defendant was indicted for having carried concealed on or about his person, a pistol: He was found guilty, sentenced, and has appealed. It appears, by bill of exceptions, that on his trial he attempted to prove that the pistol had been placed in his hands, by the owner, for the sole purpose of procuring cartridges that would fit it, and that he — accused—-had had no pistol, and had never been known to carry one, either concealed or otherwise before that day.”

The district attorney objected to the evidence sought to be elicited, on the ground that, in this case, the sole issue raised by the indictment was as to1 the concealment of the weapon, and that no evidence could properly be admitted to negative criminal intent. The court sustained the objection and correctly refused to admit the evidence.

“To commit the crime charged, it suffices that a dangerous weapon be carried concealed about the person, it matters not whether, it be so carried with or without any actual intent.”

In Scott v. State, 94 Ala. 80, it was held that a conviction might be had for carrying weapons concealed on or about the person if proved that the defendant, when arrested on account of suspicious conduct by an officer, who had a warrant of arrest for another person, had a pistol concealed in one of his -pockets.

French v. State, 94 Ala. 93. A conviction may be had for carrying concealed weapons, on proof that the defendant when arrested had them concealed upon his person. See, also, Chastang v. State, 83 Ala. 29.

Goldsmith v. State, 99 Ga. 253. Held that one who transports a pistol from a shop where it has been repaired, although he does so at the request of the owner, and for the sole purpose of delivering to the latter, is guilty of the offense of carrying a concealed weapon, if, in the act of transporting the pistol, he carries it concealed upon his person.

State v. Dixon, 114 N. C. 850. The offense of carrying a concealed weapon consists in the guilty intent to carry the weapon concealed, and does not depend upon the intent to use it; therefore, where in the trial one charged with carrying concealed weapons, on testifying that he carried it for the purpose of selling it, the trial judge properly instructed the jury in effect that there was no evidence to go to the jury to rebut the presumption of guilt which the statute raised from the possession about his person, and off his own prem- , ises, of a concealed deadly weapon. (State v. Harrison, 93 N. C. 605, is overruled.) The court said:

“The object of this statute is not to forbid the carrying of a deadly weapon for use, but to prevent the opportunity and temptation to use it arising from its concealment. If the weapon is carried for lawful use, and even for unlawful use, the defendant would not be guilty under this section if the weapon is carried openly, since this statute applies not to the act of carrying the weapon or the purpose in carrying it, but to the manner of carrying it.”

In Missouri, in the two cases of State v. Roberts, 39 Mo. App. 47, and State v. Murray, 39 Mo. App. 127, the court seemed to hold that if the weapon is carried for the purpose of sport, or for the purpose of delivering it to its owner, the act is not criminal.

To the saíne effect is State v. Larkin, 24 Mo. App. 410, and there are Texas cases holding the same doctrine. But the great weight of authority is that intent is not material, if it appears that there was concealment, which is a material fact. Ridenour v. State, supra.

A similar rule has obtained in this State relating to criminal trials for keeping saloons open on prohibited days. People v. Roby, 52 Mich. 577, is such a case. There Chief Justice Cooley said:

“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible,” and a score of instances and reported cases are cited.

In the instant case the trial court repeatedly called the attention of the jury to the evidence upon the question of concealment, asking: “Did the defendant have the gun on his person concealed as stated by the people’s witness?” We agree with counsel that concealment implies an assent of mind and purpose, but the word is not a technical one.

We do not think there is any merit in the further claim that the court did not sufficiently define the offense charged. The authorities are agreed that a revolver or pistol need not be loaded to come within the statute. State v. Duzan, 6 Blackf. (Ind.) 31; Ridenour v. State, supra; Gamblin v. State, 45 Miss. 658; State v. Bollis, 73 Miss. 57.

A careful examination of this record discloses no reversible error, and the judgment of the recorder's court is therefore affirmed. *

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred/