author: Hooker, J.

text:
    HOPKINS v. CROSSLEY.
    1. Appeal—Final Order—Time to Prosecute.
    An order allowing compensation to counsel for complainant in a suit relating to the distribution of a fund belonging to a corporation duly dissolved, entered before a final decree of distribution, on proof by affidavit of the services rendered and their value, but not made on an issue joined or heard on pleadings and proofs, is a final order, necessitating the taking of an appeal therefrom within 40 days, under the express provisions of Act No. 248, Pub. Acts 1899, § 144.
    2. Escheats—Claim by State.
    An escheat can be asserted only by the State.

      3. Corporations—Dissolution—Disposition op Funds—Failure op Trust—Escheat.
    The fund remaining in the hands of the Old Volunteer Fire Department of Detroit, on failure of the trust attempted to be created on dissolution of the corporation, did not escheat to the State, but should be divided among the persons recognized as members at the time of the dissolution, and the personal representatives of such deceased members.
    Appeal from Wayne; Hosmer, J.
    Submitted November 16, 1904.
    (Docket No. 90.)
    Decided December 22, 1904.
    Bill by Robert Hopkins and others against Luke Crossley and others to set aside a trust. On a settlement of the decree, defendants appeal.
    Reversed.

      John J. Speed, for complainants.

      Fred A. Baker, for defendants.
   Hooker, J.

A perusal of the case of Hopkins v. Crossley, 132 Mich. 612, will make intelligible the facts upon which the present proceeding rests. A decree was entered in conformity to that opinion, and the cause was remanded to the circuit court for the county of Wayne, where an investigation was made of the claims of persons asserting interests in the fund which was the subject of the litigation.

On February 1, 1904, after the hearing, but before final decree upon the merits, that court made an order allowing compensation from the fund to counsel for the complainants for their services, and directing the trustees to pay the same to counsel. On March 15, 1904, a final decree was made upon the merits of the cause, adjudging that the fund had escheated to the State, and ordering the trustees to pay over to the State the remainder, after deducting allowances therein mentioned. It directed service of the brief upon the attorney general, in case of appeal, which we understand to have been done.

On March 16, 1904, counsel for the trustees filed and served a claim of appeal from the final decree and said order, each being specifically and separately mentioned. The appeal was perfected and entered, and the cause is now before us for considerateon*upon the final decree, and a motion to dismiss the appeal from the order, which motion was seasonably made, the hearing thereof having been continued to the hearing of the principal controversy.

The statute provides:

“ Sec. 144. In all cases disposed of upon pleadings and proofs such appeal shall be claimed by a written claim delivered or transmitted to the register of the court, where such decree or order was entered, within forty days from the settlement of the case on such appeal as provided by law, and in all other cases within forty days from the entry of such decree or final order which said register shall make entry thereof.” Act No. 243, Pub. Acts 1899.

It is claimed that, while no testimony was taken at the hearing on the petition of counsel for the allowance for compensation, the facts on which the allowance was made were shown on the hearing of the cause before Judge Hosmer, and that testimony was not settled until April 4, 1904, and it is said that the record covers both phases of the case, and the appeals could be taken within 40 days from either the order making the allowance or the decree of distribution. The order was made upon proof, by affidavit, of the services rendered, and their value. It was not made upon an issue joined, or heard upon pleadings and proofs. It was a final order, and should have been appealed from within 40 days. It follows that the appeal should be dismissed so far as it applies to such order.

By reference to our former opinion (132 Mich. 612), it will appear that the “ Old Volunteer Fire Department of Detroit ” was incorporated by special act of the legislature (Laws 1840, Act No. 14). Section 6 of the act, as amended in 1869 (3 Laws 1869, Act No. 440), provided the uses to which its fund should be devoted. In the opinion of the learned circuit judge, this corporation was a public corporation and a public charity, and upon its dissolution its remaining property escheated to the State. He expressed the opinion that, if it were a private instead of a public charity, the result would be the same.

We may observe, in this connection, that an escheat must usually be asserted by the State. No one else can do so. In this case no one has asserted it. On the contrary, the attorney general, though notified of the decree and of this appeal, has not thought advisable to make any claim to this fund on behalf of the State.

Had this fund been donated to the corporation charged with the uses mentioned in section 6 of the act, it could have been sustained as a private charity, for the main, if not exclusive, purpose was to relieve persons interested in the fund, and in such cases the courts do not hold a public charity to have been created. Thus, in Swift’s Ex’rs v. Benefit Society, 73 Pa. St. 362, it was held that “a beneficial society whose benefits and benevolence are confined exclusively to its contributing members is not a charitable use.” Two years later (1875) this subject was considered by the supreme court of Massachusetts. Old South Society v. Crocker, 119 Mass. 1, 22. There a trust was declared, the beneficiaries of which were the grantees themselves, with such as they should associate to themselves,

‘£ their heirs and successors. ” It was said these last words “indicated that the grantor contemplated a permanence of association of the cestuis que trust, and intended to convey the fee in the land.” This conveyance was for the purpose of maintaining public worship by a proposed religious society, and yet the court held it not to be a public charity, and, as we have seen, said that the fee was conveyed. See, also, Attorney General v. Federal St. Meetinghouse, 3 Gray, 50; Saltonstall v. Sanders, 11 Allen, 464; Attorney General v. Trinity Church, 9 Allen, 422; Wells v. Heath, 10 Gray, 17.

In City of Bangor v. Rising Virtue Lodge, 73 Me. 428, it was held that “the distinctive characteristics of a public charity are that its funds are derived from gifts and devises, and not from fees, dues, and assessments, and that it is not confined to privileged individuals, but is open to the indefinite public.” See, also, other cases cited by counsel, as follows: Kent v. Dunham, 142 Mass. 216; Newcomb v. Boston Protective Dept., 151 Mass. 215. The corporation was held to be a private corporation, and not public, and that it was not a public charity.

In the present instance the fund was derived from members mainly. Whatever its source, it became the property of this corporation. Before its dissolution, it attempted to dispose of it to certain charitable uses, but failed, whereby the legal title remained in the trustees. No one claims that the trustees should hold for their own benefit. Had not the corporation been dissolved, we cannot doubt that it could recover the fund, and devote it to its •own purposes, as provided in section 6 of its own organic act. But it was dissolved, and the attempt of its surviving members to reclaim the fund (to which the trustee has no just claim) is met by denial upon the ground that they have no claim upon it, for the reason that it had escheated to the State.

An, escheat must rest upon the fact that, the trust failing, there is no one lawfully entitled to the fund. It is true that the corporation no longer exists, but its members and their representatives remain. The doctrine that upon the dissolution of a corporation its real estate reverts, and its personal property goes to the crown, is a hard doctrine that courts of equity have power to relieve against, and we think that such a rule is not generally applied in this country to corporations in which the members had a pecuniary interest. See Tinkham v. Borst, 31 Barb. 411; Bacon v. Robertson, 18 How. 480; Broughton v. Pensacola, 93 U. S. 269; Towar v. Hale, 46 Barb. 361; 10 Cyc. 1327; 9 Am. & Eng. Enc. Law (2d Ed.), p. 608.

Our examination of the authorities leads us to the opinion that the doctrine of the common law, odious at home, and reluctantly followed in this country, in some instances had a doubtful origin, and, as said in 2 Kent’s Commentaries, 307, note 6, should be considered obsolete. It is a new question in this State, and we feel justified in denying its application here. Statutes implying legislative disapproval of it, and providing against its consequences by authorizing the winding up of the affairs of defendant corporations, were early passed, and are of wide application. We feel justified in saying, therefore, that the fund in the hands of the trustees remained in equity the property of the corporation, and upon its dissolution its existing members succeeded to its rights. They and their representatives are entitled to have this fund divided between them. The persons entitled to share in this fund are those recognized as members at the time of dissolution who are now living, and the personal representatives of such members as have since died; in other words, those of the 116 members who participated in the division in 1887 who now survive, and the personal representatives of those said 116 who have deceased since the dissolution of the corporation.

We think that the trustees should be allowed a reasonable sum for their services since November 10, 1903. They should also be allowed their reasonable disbursements in relation to the administration of the trust, and a reasonable allowance should be made to them for the payment of their counsel, taking into consideration such sums as have been already paid.

The decree is reversed, a decree for complainants entered, and cause remanded, with direction to the circuit court to make distribution in accordance with the opinion. The costs of the appeal will be paid from the fund.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    O’NEILL v. JAMES.
    1. Negligence — Personal Injury — Sale of Explosive Substance-Question for Jury.
    Where, in an action for a personal injury caused by the explosion of a bottle of champagne cider manufactured by defendant, the testimony for plaintiff tended to show that the explosion could not have occurred if the bottle had been charged in the usual way, and the testimony for defendant that it was so charged and that the explosion might have been otherwise caused, the issue of defendant’s negligence was for the jury.
    2. Same—Liability to Third Persons—Knowledge of Danger —Necessity.
    Where no contractual relations exist between the seller of an article of commerce, harmless in itself, and one who is injured thereby, as in the case of a manufacturer of champagne cider and a bartender who is injured by an explosion of an overcharged bottle thereof, there must be "knowledge on the part of the seller of the danger, before he can be held liable.
    Error to Houghton; Streeter, J.
    Submitted November 17, 1904.
    (Docket No. 104.)
    Decided December 22, 1904.
    Case by Andrew R. O’Neill against Joseph James for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Gray, Haire & Stone, for appellant.
    P. H. O’Brien and W. A. Burritt, for appellee.
   Moore, C. J.

This is an action brought against the defendant to recover damages for the loss of an eye, which the plaintiff claims was caused by the negligence of the defendant. At the time of the injury the plaintiff was in the employ of his brother, in the capacity of bartender. The defendant was a bottler of champagne cider, and had been for 20 years prior to the injury. The liquid was charged with carbonic acid gas. Some time prior to February 28, 1902, the defendant sold a quantity of champagne cider to the plaintiff’s employer, and the cider, when delivered, was. put in the ice box. On the 28th day of February, 1902, the plaintiff took a bottle of said cider out of the ice box, and claims that while holding it in his hand, and before any force was applied to it, the bottle exploded, and was blown into a large number of fragments, and a piece of the glass from the bottle struck plaintiff in his eye and destroyed it. The plaintiff recovered a substantial judgment. The defendant has brought the case here by writ of error.

At the conclusion of plaintiff’s proofs, and also when the testimony was all in, defendant asked the judge to direct a verdict. This the judge declined to do. A motion was then made for a new trial. In denying that motion, the trial judge states the theory of the parties substantially as follows:

“The pleadings which made the case, which was left to the jury, asserted on the part of the plaintiff that the defendant negligently had sent out an article, in itself dangerous, in place of one in itself safe; that the article furnished by the defendant was a dangerous explosive. The defendant in the case attempted to show that champagne cider—the liquid furnished by the defendant—was a nonintoxicating, harmless drink. The plaintiff made no attempt to show that any deleterious or poisonous substance was put into the liquid, so as to render it at all harmful as a drink; but the plaintiff introduced testimony which he claims tended to establish that the champagne cider sent out by the defendant had become a dangerous explosive, l and that it had so become through the negligence of the defendant. The questions to be determined on this motion are whether there was evidence to sustain the case made by the pleadings on the part of the plaintiff, sufficient to cause the case to be submitted to the jury, and, if there was, whether the verdict of the jury is against the clear weight and preponderance of the evidence. Before the plaintiff reseed, he introduced testimony to show that he had sustained an injury by the explosion of a bottle of champagne cider which was manufactured and furnished by the defendant. There was also testimony on the part of experts, without objection on the part of the defendant, that champagne cider, manufactured in the usual way, with the ordinary pressure, was safe. There was also testimony that, if the pressure was increased beyond a certain limit, then the article became dangerous, and dangerous because of the likelihood of an explosion. The experts also testified that an explosion would not occur, under the circumstances as detailed in this case, unless the bottle had been overcharged, and would be likely to occur, had the bottle been overcharged. * * *

“ The defendant introduced testimony to show that he had been engaged in the manufacture of champagne cider for a long term of years; that he had never known a bottle to explode under similar circumstances to those testified to on the part of the plaintiff; that the gas with which the water used in making the champagne cider was charged was explosive. The defendant testified that he had never charged champagne cider at a pressure greater than sixty pounds for commercial purposes. His bottler (the one who charged the bottle which caused the injury to O’Neill) had been in his employ some ten years, engaged in the same work. The testimony on the part of the defendant and the testimony on the part of the plaintiff tended to show that the apparatus used by the defendant was the ordinary equipment of such establishments. The defendant urged that the testimony was uncontradicted that no champagne cider was ever bottled by him for sale at a pressure higher than sixty pounds to the square inch, and that there was no evidence whatever of any negligence on the part of the defendant. While the testimony of the defendant and of his bottler was positive that no champagne cider had ever been bottled for sale at a higher pressure, if there were other testimony in the case from which a jury might reasonably infer that this pressure had been exceeded, the question became one which ought to be submitted to the jury for its decision. Opposed to this testimony was the testimony ot the experts, in which they maintained that the explosion could have occurred for no reason other than an overcharge.”

It was the claim of defendant the explosion, instead of being caused by an overcharge, might have been caused as follows:

1. The contact of the human hand with the cold bottle taken from the ice box, upon a small area of the cold glass, would have caused a sudden expansion of the small1 area of the glass, and a consequent cracking of the bottle.

2. The warm air of the room might have caused the same result, independent of the hand.

3. The pressure brought to bear upon the bottle by inserting its neck into the socket of the corkscrew, or by striking the bottle on the corkscrew.

4. Perchance a cracked bottle from some other cause.

5. A bottle inherently weak by reason of varying thickness of glass, or the like.

We think, with reference to the question of negligence, the court was right in holding that, in view of the testimony upon this branch of the case, the issue should be submitted to the jury. See Merryman v. Hall, 136 Mich. 296; Schoepper v. Chemical Co., 113 Mich. 585.

There is, however, a much more serious question in the case. The testimony on both sides is that champagne cider, bottled in such bottles as were used by defendant, at a pressure of 60 pound's or under, is a harmless ordinary article of commerce, usually kept for sale where soft drinks are sold. The record also discloses that defendant did not himself charge the bottle which did the mischief. There is nothing to indicate he ever saw it. The testimony'of the bottler is that it was charged in the usual way, and sent out in the usual course of trade, and that he had no knowledge that it was improperly charged. Indeed, his testimony is that it was not improperly charged. There is no testimony tending to establish that defendant had any knowledge that the bottle was overcharged when it left his place of business, or from which an inference could be properly drawn that he had such knowledge. Under this state of facts, counsel for defendant claim:

“ The point we raise is that where one is engaged in the manufacturing and selling of an article of commerce harmless in itself, as the proofs show that champagne' cider is, when manufactured and bottled in the ordinary-manner, he cannot be held liable to a third person, who stood in no privity of contract with him, because perchance one bottle did, for some reason, burst, in the absence of proof of knowledge of vendor of the defect.”

In reply to this claim, counsel for plaintiff say:

“ The defendant contends that the plaintiff cannot recover because there was no contractual relation between the parties. It seems to us that it is a sufficient answer to this contention to say that if the defendant knowingly or negligently sent out an article which was of itself a dangerous explosive, and it exploded in the hands of the plaintiff, and injured him, without fault on his part, the defendant is liable, whether there was any contractual relation between the parties, or not. If the defendant knew the bottle to be a dangerous explosive, or by proper care on his part could have known it, he is liable. The duty of the defendant was not a duty which he owed to the purchaser only, but which he owed to every person in whose hands the article might pass—a duty which he owed the public.”

Plaintiff cites a number of cases in support of his proposition, the first of which is Weiser v. Holzman, 33 Wash. 87. This case arose on demurrer, and we quote from it at length:

“The next question is, Does the complaint state facts sufficient to constitute a cause of action F Stripped of its verbiage, the complaint alleges that the respondents manufactured, sold, and delivered to one Pratt, under the name of ‘ champagne cider,’ a dangerous explosive, knowing it to be such, without warning Pratt of its dangerous character, or placing on the bottle containing the substance anything to indicate that it was a dangerous explosive, and that the appellant, while in the employ of Pratt, and engaged in his duties as such employé, and without fault or negligence on his part, was injured by an explosion of the substance. Paragraph 5 of the complaint was as follows:

‘That the injuries to said plaintiff were caused by the willful negligence, carelessness, and want of proper care on the part of the defendants, D. Holzman & Co., by reason of said defendant willfully, carelessly, and. negligently, and for want of ordinary care in the manufacturing, bottling, preparing, and selling of said champagne cider, in this: That the said defendants failed to manufacture, bottle, and prepare the said champagne cider in the proper degree of temperature; failed to properly charge the said champagne cider with the proper amount of carbonic acid gas and other substances used in the manufacturing and bottling of the same; failed to properly test said bottle as to its strength and endurance to hold said champagne cider; failed to properly label said bottle as to its being an explosive and dangerous substance; failed to explain to the said M. L. Pratt, or said plaintiff, or any one else, of the danger in handling and using said bottle of champagne cider, and the ■cause for and probability of its exploding and injuring those who came in contact with the same.’

“ The prayer was for damages in the sum of $10,000. The record does not advise us as to the ground upon which the trial judge sustained the demurrer, but the respondents urge againstits sufficiency two principal contentions, the first of which is that the allegations of negligence are ,so indefinite .as to be meaningless, and the second that there is no causal connection between the negligence alleged (conceding the allegations sufficient) and the injury complained of. The argument that the allegations of negligence are so indefinite as to be meaningless is based upon recitals in the paragraph above quoted. It seems to us, however, that the complaint states a cause of action without that paragraph, and hence it is not very material to inquire just how definite this particular one should have been made; but, conceding it otherwise, we do not think the allegations susceptible to a general demurrer. Clearly, the acts recited therein, when taken with the other acts recited in the complaint, constitute actionable negligence; and, if more particularity of statement was- desired and could be required, the remedy was by a motion to make more definite and certain, not by a general demurrer.

“The second objection seems to us to be equally without merit. One who sells and delivers to another an article intrinsically dangerous to human life or health, such as a poison, an explosive, or the like, knowing it to be such, without notice to the purchaser that it is intrinsically dangerous, is responsible to any person who is, without fault on his part, injured thereby. The rule does not rest upon any principle of contract or contractual relation existing between the person delivering the article and the person injured, for there is no contract or contractual relation between them. It rests on the principle that the original act of delivering the article is wrongful, and that every one is responsible for the natural consequences of his wrongful acts. The rule that liability exists in such cases is abundantly supported by authority. In Thomas v. Winchester, 6 N. Y. 397, it was held that a manufacturer of drugs, who had sold a druggist extract of belladonna under the label ‘ Extract of Dandelion’ was liable to a person injured thereby, who had procured it of the druggist on a physician’s prescription calling for extract of dande-' lion; it appearing that neither the druggist, nor the person taking it, knew that it was other than it was labeled. In Norton v. Sewall, 106 Mass. 143, it was held that an apothecary who had negligently sold a deadly poison for a harmless medicine called for was liable for the death of the purchaser’s servant, to whom it was administered, at the suit of the servant’s administrator.

“In Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, the principle governing the liability was stated in the following language:

“ ‘ It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other, who is not himself in fault.’

“ So in Lewis v. Terry, 111 Cal. 39, it was said:

“ ‘We agree that the action cannot be sustained on the ground of any privity of contract between plaintiff and defendants, for there was none. If a tradesman sells or furnishes for use an article actually unsound and dangerous, but which he believes to be safe, and warrants accordingly, he is not liable for injuries resulting from its defective or unsafe condition to a person who was neither a party to the contract with him, nor one for whose benefit the contract was made. * * * But‘when the seller, as in the case made by the complaint before us, represents the article to be safe for the uses it was designed to serve, when he knows it to be dangerous because of concealed defects, he commits a wrong independent of his contract, and brings himself within the operation of a principle of the law of torts.’

“See, also, 1 Shearman & Redfield on Negligence (5th Ed.), § 117; Blood Balm Co. v. Cooper, 83 Ga. 457; Schubert v. J. R. Clark Co., 49 Minn. 331; Bishop v. Weber, 139 Mass. 411; Elkins v. McKean, 79 Pa. St. 493; 12 Am. & Eng. Enc. Law (2d Ed.), p. 508, subd. 6.”

It will be observed that, where no contractual relations exist, the doctrine is recognized that there must be knowledge of the dangerous character of the thing sold, before defendant can be held liable, and this doctrine is recognized in all the cases to which our attention has been called. Counsel for defendant cite many cases in their brief in support of their contention. We deem it necessary only to cite Guinea v. Campbell, 22 Quebec Official Law Rep. 257, and Glaser v. Seitz, 71 N. Y. Supp. 942. We quote from the last-named case:

“Siphons of seltzer water, like the one that exploded, are in common use, and have been manufactured and sold in this city and elsewhere for many years. They are certainly in as common use as steam boilers and gas, and an explosion of a steam boiler or of gas does not necessarily create an inference of negligence sufficient to fix liability on the defendant. The plaintiff, even in such cases, must go further, and prove affirmatively the existence of some defect in construction or condition of the thing which contains the gas or steam, of which the defendant was cognizant, or which he ought to have known by the exercise of proper care in the premises. There is no evidence in this case that the bottle, which was not manufactured, but filled, by the defendant, was not properly constructed, or that it was constructed differently from bottles in which seltzer water is usually sold. Nor is there any evidence that the manner of putting the water in was different from the method in common use, or that the character of the liquid was different from that usually put into such bottles. Gunpowder, dynamite, turpentine, gas, fireworks, and many other explosives are used in the community as merchandise necessary in proper places and for certain purposes; and no one can contend that the sale of these commodities constitutes negligence on the part of the vendor, when the articles are sold by their proper name, indicating their character. There are cases in the books where articles have been sold as apparently harmless, and have turned out to be dangerous and inflicted damage, and the vendor has in consequence been held liable. For example, where naphtha, which is of an explosive character, was sold for oil, and injury resulted. There the defendant was held liable for the deceit. There is no pretense in this case that the siphon of the seltzer water sold was misnamed, or that any deceit was practiced on the plaintiff. Indeed, it was an ordinary, well-known article of merchandise, sold in large quantities every day. It is common knowledge that bottles containing seltzer or vichy water or champagne or ginger ale or cider will sometimes explode, and that barrels containing cider may explode. But it does not necessarily follow that the vendor of these commodities in such bottles or barrels is liable for the explosion, in the absence of misconduct on his part, which misconduct must be affirmatively proved. For want of such proof, the complaint must be dismissed. Complaint dismissed. ”

The plaintiff knew that champagne cider, as ordinarily manufactured and sold, was charged with a gas. As we have before stated, there is no proof from which the inference might be drawn that defendant had knowledge that the bottle was improperly charged. The proof offered on the part of plaintiff, as well as that offered on the part of defendant, is that the apparatus used by the employés was a proper one. Under the facts disclosed by the record, a verdict should have been directed in favor of defendant.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Carpenter, J.

text:
    R. K. CARTER & CO. v. WEBER.

    1. Pleading—Notice of Special Defense—General Issue— Evidence Admissible.
    In an action on a written contract of employment, evidence that when the contract was entered into, both before and after defendant signed the same, plaintiff’s vice-president informed defendant that, unless the latter made a saving of §5,000 under the contract, he would not be required to pay the consideration agreed on, was not admissible under a plea of the general issue, without notice either to prove that the execution of the contract was procured by fraud, or that it tended to show that after the contract was made it was so modified that defendant was released from his obligation. Circuit Court Rule 7 b.

    3. Same—Appeal from Justice’s Court.
    Circuit Court Rule 7 b providing for notice of affirmative defense applies to suits originating in justice’s court.
    3. Same—Estoppel to Object.
    The fact that plaintiff, declaring on a written contract, proves without objection the conversation attendant upon its execution, does not entitle defendant, who has given no notice of special defense, to show his version of the conversation, avoiding and contradicting the contract, nor estop plaintiff from objecting that such evidence introduces an issue not pleaded.
    4. Evidence—Parol—Written Contract.
    A contract of employment, by which defendant agreed to pay plaintiff a salary of §25 per month for four months for keeping him posted on the state of the market and placing orders for goods to the best advantage, and, if the service was satisfactory, to continue the same for the balance of the year, purports to contain all the elements of the agreement, and hence parol evidence of a contemporaneous arrangement that, unless the contract operated as a saving to defendant of §5,000, he should not be bound, is inadmissible.
    5. Master and Servant — Contract of Employment—Trial — Notice to Discontinue.
    The service proving unsatisfactory, defendant was not obliged to notify plaintiff thereof at the end of the four months’ period or be bound for the balance of the year.
    6. Same—Evidence—Inference.
    Where, during the last three months of the four months such contract was in force, defendant neither obtained nor sought the benefit of the contract, plaintiff was bound to infer therefrom that the employment was unsatisfactory.
    7. Same—Receipt op Letters.
    Defendant’s receipt and failure to answer written communica-' tions sent by plaintiff through the mails did not estop defendant from subsequently contending that the services were unsatisfactory, and hence that he was not bound for the additional term.
    Error to Wayne; Donovan, J.
    Submitted November 17,1904.
    (Docket No. 234.)
    Decided December 22, 1904.
    Assumpsit by R K. Carter & Company against Henry C. Weber on a contract of employment. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Anderson & Backham, for appellant.

      O. JEJ. Angstman, for appellee. .

       Rehearing denied January 30, 1905.

   Carpenter, J.

Plaintiff is a corporation organized under the laws of New Jersey. Its business is to make purchases for dealers in hardware throughout the country. Defendant is a hardware .dealer in the city of Detroit. May 28, 1901, defendant signed and gave plaintiff this written order, which was dated September 1, 1901:

“We will pay you a salary of $25 per month for four months from date for keeping us posted oh market change, placing orders we send you to our best advantage; attending to all and any business we may intrust to you. If this trial is satisfactory, we will continue for the balance of the year to September 1, 1902. Your services to be free from May 28 to September 1.”

June 1,1901, plaintiff gave defendant written notice of the acceptance of this order, and from June 1, 1901, to September 1, 1902, defendapt received special weekly letters from plaintiff, stating the condition of the market, its probable immediate future, and prices on different kinds of hardware. Plaintiff, besides sending said weekly letters, placed all the orders sent by defendant except one (and defendant never complained of its failure to place this one), answered all his communications, and held itself ready to attend to all business intrusted to it. After October 3, 1901, defendant did no* business through plaintiff, and in no way communicated with plaintiff, and after that date he did not examine, or even open, the letters received from plaintiff. He was not satisfied with the services performed by plaintiff, but he never gave notice of this fact to plaintiff.

Plaintiff commenced this suit in justice’s court to recover a year’s salary at $25 per month and $5.88 for goods purchased for defendant. Defendant pleaded the general issue. The trial in that court resulted in a judgment for plaintiff for $305.88, the full amount of its claim. Defendant appealed to the circuit court, and the trial there resulted in a verdict and judgment for defendant.

It is to be inferred from the record that this verdict would not have been rendered had the trial judge not permitted defendant to show and the jury to consider, against plaintiff’s objection, testimony showing what occurred between defendant and plaintiff’s vice-president at the time the latter secured from the former the order heretofore set forth. This testimony tended to prove that at the time the order was taken, both before and after defendant signed the same, said vice-president informed defendant that, unless the latter made a saving of $5,000 under this contract, he would not be required to pay the $25 per month agreed therein.

It was insisted in the court below, and it is insisted in this court, that this testimony was inadmissible under the plea of the general issue. If the only grounds upon ■which this testimony was admissible are (a) that it tended to prove that the execution of the contract was procured by fraud, and (6) that it tended to show that after the contract was made it was so modified that defendant was released from his obligation, the testimony was inadmissible under the general issue. See Cir. Ct. Rule 7, subd. 6. This rule was applicable, though this suit was originally commenced in justice’s court. See Hubbard v. Freiberger, 133 Mich. 139.

Defendant insists that, as plaintiff introduced on the trial a deposition in which said vice-president testified to said conversation—his testimony differing radically from that of defendant—plaintiff cannot now insist that when said testimony was contradicted it raised an issue not triable in this cause. It is true that a party has no right to retain an unfair advantage resulting from his introducing inadmissible testimony, and that, therefore, trial courts may, if justice requires, permit such testimony to be contradicted. 'While such a failure to observe the rules of law for the admission of testimony warrants punishment, that punishment should have some relation to the offense. Such misconduct does not make a party an outlaw. It may be said in general, and certainly in this case, that the principles of justice would be subverted, and a punishment inflicted out of all proportion to the offense, were we to hold that the admission of this improper testimony effected a radical change in the issue to be tried.

Defendant also insists that this testimony was admissible as tending to prove what the actual contract was, and. he relies upon the cases of Phelps v. Whitaker, 37 Mich. 72; Weiden v. Woodruff, 38 Mich. 130; and Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner, 55 Mich. 453. These cases and many similar cases are discussed and analyzed by Chief Justice McGrath in the case of Cohen v. Jackoboice, 101 Mich. 416-418. It will be seen by reading his opinion that the only one of these decisions which tends to support defendant’s position is Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner, supra. That case is authority for the proposition that, when a written order does not purport to contain all the elements of the agreement, parol testimony is competent to prove the omitted portions. In the case at bar the order in question does purport to contain the elements of the agreement (see Cohen v. Jackoboice, supra), and therefore the case of Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner is inapplicable. It may also be said that the parol testimony held competent in Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner did not tend to contradict the terms of the writing. The testimony of defendant under consideration does tend to contradict it. It tends to prove that an obligation which the writing makes absolute was in fact conditional only. The elementary rule of evidence which forbids the introduction of parol testimony to contradict a written agreement is applicable, and excludes the testimony. See Cohen v. Jackoboice, supra. It follows from this reasoning that plaintiff was entitled to recover $100, viz., for four months’ services at $25 each, as agreed in said order.

We think the plaintiff was also entitled to recover the item of $5.88 for money expended in the purchase of goods. Defendant admits that he received these goods, and says that he does not remember having paid for them. This is no proof of payment, even if payment could be proved under the general issue, as to which see Cir. Ct. Rule 7, subd. b.

Having determined that plaintiff has a right to recover $25 for each of the four months specified in the order, we come now to the question of its right to recover for the remaining eight months of said year. It will be remembered that defendant agreed, “if this trial [the four months’ trial] was satisfactory, we will continue for the balance of the year.” It is conceded by both parties that defendant had the right to determine whether the trial was satisfactory. But it is contended by plaintiff that it was defendant’s duty to notify it if he was not satisfied with said trial. I do not think it was defendant’s duty to notify plaintiff that he did not intend to continue the contract. See McCormick Harvesting Machine Co. v. Cochran, 64 Mich. 636; Osborn v. Rawson, 47 Mich. 206; Walter A. Wood Reaping & Mowing Machine Co. v. Smith, 50 Mich. 565. Even if such a duty existed, plaintiff should have inferred defendant’s dissatisfaction from his conduct. From October 3d to January 1st, while the contract was in full force, defendant, to plaintiff’s knowledge, neither obtained nor sought the benefit of his contract. From this plaintiff should have inferred, and I think the correspondence indicates that it did infer, that defendant was dissatisfied.

Nor did defendant’s receipt and failure to answer the written communications make him liable for the remainder of the year’s salary on the principle of estoppel. Defendant did not voluntarily accept these communications. Plaintiff mailed them, and the postman delivered them. Defendant never replied to them, never used them, and never opened them. He simply preserved them. To make the principle of estoppel applicable, it must be held that from defendant’s silence—from his failure to answer the communications— plaintiff had a right to infer, and did infer, his desire to continue the contract. Plaintiff had no right to draw any inference from defendant’s silence, unless defendant was under an obligation, which the law will notice, to answer his communications. There is no such obligation. While politeness will ordinarily induce a man to answer letters, he has the legal right to ignore them, and to determine for himself whether he will answer them. Cases may arise in which this right is of great value, and the courts are not at liberty to destroy it. No inference may be drawn, therefore, merely because one does not return or answer a letter received by him. See State Bank of St. Johns v. McCabe, 135 Mich. 479; Canadian Bank of Commerce v. Coumbe, 47 Mich. 358.

It results from this opinion that the trial court erred in not directing a verdict for the plaintiff for $105.88.

Judgment is reversed, with costs, and a new trial ordered. ,

The other Justices concurred.


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    SMITH v. AUDITOR GENERAL.
    1. Taxation —Tax Sales — Setting Aside Degree — Including*. Exempt Property.
    That a railroad right of way across petitioner’s lands was not excepted from the assessment, decree, and sale of the land for taxes, is not a jurisdictional defect entitling him to have the tax sale set aside. 1 Gomp. Laws, § 3893.
    3. Same—Notice of Sale—Defects.
    That part of the land in a township was described in the notice of sale for taxes under the proper township and range number, and the remainder, including petitioners’ land, was listed as in the city, within the corporate limits of which it was in fact situated, is not a jurisdictional defect. 1 Comp. Laws, § 3893.
    3. Same—Amount of Decree—Interest—Error.
    That the original decree for the sale of lands for taxes was excessive, owing to an error-in figuring interest, is a mere irregularity, for which the sale will not be set aside.
    4. Same—Title Acquired by Purchaser.
    Where proceedings for the sale of petitioners’ lands for taxes included the right of way of a railroad crossing the land, which was exempt, the fact that the grantee of the State released such right of way to the railroad company did not prevent him from conveying to the petitioners, under section 141 of the tax law, all that he had received from the State, as he acquired no valuable interest in such right of way.
    Appeal from Marquette; Stone, J.
    Submitted November 17, 1904.
    (Docket No. 176.)
    Decided December 22, 1904.

      Petition by Samuel L. Smith and others against Perry F. Powers?auditor general, and Albert S. Heinemann to set aside certain tax sales. From a decree dismissing the petition, petitioners appeal.
    Affirmed.

      M. J. Sherwood, for petitioners.

      Charles A. Blair, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for defendant auditor general.

      George P. Brown, for defendant Heinemann.
   Carpenter, J.

Petitioners are the owners of the northwest quarter of the southwest quarter of section 9, township 47 north, of range 26 west, in the county of Marquette. The taxes on said land not having been paid for the years 1896 and 1897, the auditor general included them in his petition in 1900, and they were sold in May of that year, and bought by the State. April 2, 1903, they were deeded by the State to respondent Heinemann. August 6, 1903, the petitioners filed this petition, praying that the decree made in 1900 for the sale of these lands be set aside. From a decree dismissing their petition, petitioners appeal to this court.

The grounds upon which we are asked to reverse the decree of the trial court and grant relief are three:

1. Running across petitioners’ land was a right of way of a railroad. This right of way, which did not belong to petitioners, but to a railway company, was not excepted; and it is contended that, because this exempt property was included in the sale of petitioners’ land, they have a right to have vacated the decree authorizing said sale. "We have decided (see Flint Land Co. v. Godkin, 136 Mich. 668) that the irregularity in including the right of way in the description of petitioners’ land would not open the decree to collateral •attack. But petitioners insist that rule is not applicable. Here, by a petition in the case in which the decree was rendered, they seek to have it set aside. In consequence of the following provision in section 70 of the tax law (1 Comp. Laws, § 3893), “ Provided, further, that no sale shall be set aside after confirmation except in cases where the taxes were paid or the property was exempt from taxation,” we have held that even the court which rendered the decree has no authority to set it aside, except for one of the above reasons, or for lack of jurisdiction. See Spaulding v. O'Connor, 119 Mich. 45; Berkey v. Burchard, 119 Mich. 101; Brooks v. Auditor General, 119 Mich. 329; Shefferly v. Auditor General, 120 Mich. 455; Blondin v. Griffin, 133 Mich. 647—as to the obj ection now under consideration. Petitioners had, therefore, no right to the relief sought, unless upon the ground that the property was exempt from taxation. Petitioners’ property was nofe exempt from taxation. The fact that property which was exempt from taxation was described with petitioners’ property may have increased their burden of taxation, but this was as to them no more than an irregularity—an irregularity which was cured by the decree, and whicñ does not entitle them to the relief they seek.

2. That the published notice of hearing required by sections 61-63 of the tax law (1 Comp. Laws, §§ 3884-3886) was fatally defective: The facts upon which this complaint is grounded are these: Part of the land in township 47 north, of range 26 west, is situated within, and part without, the limits of the city of Negaunee. In his petition and published notice, the auditor general separated those descriptions which were within from those which were without the city. Under the head, “ Township 47 North, of Range 26 West,” he listed those descriptions which were outside the city of Negaunee. In a different part of his petition and notice, under the head, "City of Negaunee, Township 47 North, of Range 26 West,” he listed those descriptions which were within the city. It must be inferred from the record that petitioners’ agent looked only at the first list, and assumed therefrom that petitioner’s land was not included in the petition. If it be assumed that their agent exercised due diligence, petitioners are not, as already shown in this opinion, entitled to relief, unless their taxes were paid, their land exempt from taxation, or there was a lack of jurisdiction to pronounce the decree. It is obvious that the objection under present consideration cannot be sustained unless we hold that the notice in question was so defective as to confer no jurisdiction upon the court. We cannot so hold. It should be presumed that, when the auditor general separately listed the property inside the municipality from that outside, he was adopting a practice which would enable property owners to more readily ascertain whether their property was included in the petition.

3. Complaint is made that, owing to an erroneous computation of interest, the original decree was excessive. If this computation was erroneous, which we doubt, it was nothing more than an irregularity, which, under the rule stated in this opinion, cannot be assailed by petitioners.

Petitioners complain that, in consequence of the release by Heinemann to the railroad company of the right of way heretofore referred to, the latter is not in a position to convey to petitioners, under section 141 of the tax law (1 Comp. Laws, § 3960) all that he received from the State. This contention is without merit. As the right of way was exempt, defendant’ Heinemann, by his deed from the State, acquired no valuable interest in the exempt right of way. Notwithstanding said release, he is in the position to convey everything of value conveyed by his deed.

The decree appealed from will therefore be affirmed, with costs.

The other Justices concurred.


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    KEHO v. AUDITOR GENERAL.
    1. Tax Sales—Validity —Confirmation —Jurisdictional Defects.
    To entitle the owner of land sold for taxes to relief after confirmation of the sale, he must show that the taxes have been paid, or that the land is exempt from taxation, or that the court lacked jurisdiction to make the decree.
    2. Same—Assessment—Description.
    Where petitioners owned lots 4 and 5, and 6 inches of lot 6, the fact that the six-inch strip was omitted from the description in the tax roll did not deprive the court of jurisdiction in proceedings for the sale of the land, and was not ground for setting the sale aside after confirmation.
    Appeal from Saginaw; Snow, J.
    Submitted November 15, 1904.
    (Docket No. 137.)
    Decided December 22, 1904.
    Petition by James J. Keho and Frank Keho against Perry F. Powers, auditor general, and Ezekiel De Camp to set aside certain tax sales. From a decree for petitioners, defendant De Camp appeals.
    Reversed.

      Nathan 8. Wood, for petitioners.

      Albert De Camp, for appellant.
   Carpenter, J.

Since 1882 petitioners have owned lots; 4 and 5,'and the east 6 inches of lot 6, of P. C. Andres* subdivision of lots 1, 2, 3, 4, block 13, north of Cass street, in the city of Saginaw. This entire property is covered by one building owned by petitioners. In 1899 there was omitted from the description for the tax assessment said six-inch strip, the property being described as lots 4 and 5 of said subdivision. The taxes were not paid, and the lands were included in the proper petition of the auditor general, and in 1902 a decree was taken against them. They were sold on May 6th to the State. Subsequently defendant De Camp purchased the State bid, and, after the time of redemption expired, received a tax deed. October 13, 1903, he served upon petitioners the statutory notice for reconveyance. (The time for this reconveyance was, by stipulation of the parties, extended to the final adjudication of this case.)

Petitioners then instituted this proceeding by filing a petition in the lower court, praying that the decree entered in 1902 be opened and vacated on the ground that their property had not been correctly described. A hearing was had, and a decree entered granting the prayer of said petition. From this decree defendants appeal to this court.

To entitle petitioners to relief, they must show that their tax has been paid, their land exempt from taxation, or that tiie court lacked jurisdiction to make the decree. See opinion in Smith v. Auditor General, ante, 582. As the tax in question was not paid, and as the property was not exempt from taxation, petitioners had no right to the decree appealed from, unless there was a total want of jurisdiction to make the original decree. That decree cannot, therefore, be sustained, unless the omission of the six-inch strip from the description on the assessment roll deprived the court of jurisdiction. It is obvious that it did not. The gravamen of petitioners’ complaint is that their land was not properly assessed. We have held (Muirhead v. Sands, 111 Mich. 495):

“If the owner permits the case to proceed to a decree, * * * the question of whether it [the land] is properly assessed, and whether proper steps have been taken to charge the land after assessment, * * * become res adjudicata.”

Petitioners call our attention to many authorities. We refrain from discussing them, because none of them hold or indicate that an irregularity like that under consideration is jurisdictional.

The decree for petitioners must be reversed, and their petition dismissed, with costs of both courts.

The other Justices concurred.


author: Montgomery, J.

text:
    D. M. OSBORNE & CO. v. WATERLOO.
    1. Appeal and Error—Verdict—Conolusiveness.
    The verdict, on conflicting evidence, of a properly instructed jury, is conclusive.
    2. Same—Right to Allege Error.
    Plaintiff in error cannot complain of a judgment in his favor, though it did not follow the verdict.
    Error to St. Clair; Tappan, J.
    Submitted November 17, 1904.
    (Docket No. 70.)
    Decided December 22, 1904.
    Assumpsit by D. M. Osborne & Company against . Charles B. Waterloo for goods sold and delivered. There was judgment for plaintiff for less than the amount claimed and awarding costs to defendant, and plaintiff brings error.
    Affirmed.

      James A. Muir, for appellant.

      Phillips & Jenks, for appellee.
   Montgomery, J.

The defendant was from January 1, 1900, to-January 1, 1901, the plaintiff’s transfer agent at Port Huron. His duties consisted of receiving and storing plaintiff’s goods and transshipping as directed. He also made some purchases of plaintiff, and sold some goods on commission. On January 1, 1901, defendant owed plaintiff a balance of $167.15. A cash payment of $54.02 has been made since, and to recover the balance of $113.13 this action was brought.

On the trial defendant claimed to recover rent for the buildings in which the goods of plaintiff were stored at the rate of $2 per day for the period from January 1st, when his contract expired, until the date of removal. The plaintiff concedes that defendant was entitled to recover a reasonable rental, but insists that there was no binding contract to pay at the rate of $2 per day, which is claimed to be excessive. The defendant relies upon the case of Thompson v. Sanborn, 52 Mich. 141, holding that when one notified of the terms upon which premises may be occupied proceeds to occupy them a contract to meet the terms or pay the rent demanded is implied. The case ^ was submitted to the jury on this theory.

The plaintiff’s counsel insists that there was in this case no basis for the application' of this doctrine, for the reason that notice of the defendant’s demand was not brought home to the plaintiff. This question is determined by the authority or want of authority of plaintiff’s agent, Julius •Philip. Admittedly notice was given to him of the defendant’s purpose. It is said, however, that while he was an agent of the company in the territory in question,having charge of sales agents, his duties did not include a supervision of the business of transfer agents, or authorize him to make contracts with them for storage.

We have examined the testimony of this witness with great care, and, without attempting to set out the same in detail, we feel bound to say that, taken as a whole, considering his own version as to his duties in looking after the interests of plaintiff in his territory, and communicating with the company facts affecting their interests coming to his knowledge, and his dealings with defendant in this particular matter, together with his conflicting statements as to when this particular fact of defendant’s price for rental was communicated to the company, there was enough, at least, to carry the question to the jury, and that, so far from the court being in error in permitting the questions put to the witness to be answered, a searching cross-examination was fully justified.

It is further insisted that the defendant’s successor as transfer agent, one Dawson, became responsible for the rent after January 11th, and that in no event should the defendant be allowed to offset more than $22 on this account. But we find that upon this point also the testimony was conflicting, and the question was fairly submitted to the j ury.

After the verdict, which was for defendant, of no cause of action, the circuit judge discovered that he had committed error in an allowance of one small item, $11.63, and entered judgment for plaintiff for that sum, but with costs to defendant. Plaintiff contends that the judgment should have followed the verdict. It is conceded that, as the case originated in the justice’s court, the costs were in the discretion of the trial judge, and certainly plaintiff is not in position to complain of a judgment in its favor.

Judgment affirmed.

The other Justices concurred.


text:
    CANTON v. GRINNELL.
    1. Appeal and Error—Theory Below.
    A cause will not be considered in this court on a theory not advanced below.
    2. Master and Servant—Assault by Servant—Liability op Master—Instructions.
    In an action for an assault co:nmitted by defendants’ servants while removing a piano from plaintiff’s residence at her husband’s request, an instruction that defendants would only be liable for those acts which were committed by the. servants in doing those things necessary in getting the piano sufficiently guarded defendants’ rights.
    8. Conditional Sales—Husband and Wipe—Title.
    Defendants sold a piano to plaintiff’s husband under a conditional sale, reserving the title, but plaintiff testified that she owned the piano and made the payments thereon to defendants. At the husband’s request defendants sent truckmen to the residence to get the piano. There was no default in payments. Held, that the fact that the husband made the purchase, and that the agreement was signed by him, did not fix the title to the piano in him as against his wife.
    Error to Wayne; Rohnert, J.
    Submitted November 17, 1904.
    (Docket No. 107.)
    Decided December 22, 1904.
    Trespass vi et armis by Mary A. Canton against Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      William L. January (T. E. Tarsney, of counsel), for appellants.

      Charles Kudner and M. J. Lehmann (George Gartner, of counsel), for appellee.
   Montgomery, J.

The plaintiff brought an action to recover damages for an assault committed upon her by the defendants’ servants while removing from the home occupied by herself and husband a piano which had been sold to plaintiff’s husband on a contract retaining title in Grinnell Bros., and authorizing them to retake the piano whenever there was default in payment. The declaration averred that the piano was plaintiff’s property, but no recovery for the value of the piano was sought. The court charged the jury that the piano must by them be considered as belonging to plaintiff’s husband, unless they had reason to believe that it belonged to plaintiff, and this though it may in fact have been plaintiff’s property as between herself and her husband. There was no claim that payments were in arrear. The defendants were taking the piano to their storeroom for storage at the request of W. L. Canton, plaintiff’s husband. The plaintiff recovered a verdict and judgment of $300, and the defendants bring error.

The defendants’ counsel in their brief state, “An important, and perhaps the most important, question to be considered is whether or not the relation of master and servant existed between the defendants, Grinnell Bros., and the truckmen at the time of the alleged assaultand it is argued that the men in question were, under the proofs, temporarily in the employ of W. L. Canton and under his control, and that Grinnell Bros, were in no way responsible for their acts.

We have searched the record in vain to find where and in what manner this question was presented to the trial court.. On the contrary, the defendants’ requests throughout assumed that the truckmen were in defendants’ employ. Under these circumstances we cannot be asked to consider the case on a theory not advanced below. It is, however, clear that the testimony was open to the inference that the truckmen were in the employ of and acting under directions of defendants. There was also testimony tending to show that the servants of defendants committed the assault while acting within the general lines of their employment. The jury were instructed that the defendants would be only liable for those acts which were committed by the two truckmen in doing' those things necessary in getting the piano. This instruction sufficiently guarded defendants’rights. Smith v. Webster, 23 Mich. 298; Fitzsimmons v. Railway Co., 98 Mich. 257, and cases cited; 20 Am. &. Eng. Enc. Law (2d Ed.), p. 169.

Error is assigned upon the ruling submitting the question of the ownership of the piano to the jury. It appeared that the contract for purchase was made by W. L. Canton, and consists of an agreement, signed by him, to buy the piano on certain terms, the title still remaining in Grinnell Bros. It is clear that this did not irrevocably fix the title in Canton as between himself and wife. Her testimony is to the effect that she owned the piano, and that she made the payments'to Grinnell Bros. If defendants had been proceeding under their contract on a default in payment, the question of ownership as between the plaintiff and her husband would have been immaterial; but this was disclaimed by defendants, who assert that they were acting for Mr. Canton. The circuit judge guarded this question when he said that defendants had the right to proceed upon the supposition that the piano belonged to Mr. Canton unless they had reason to believe that it belonged to the plaintiff. The ownership of the piano was only considered for its bearing upon the assault. No recovery was had or claimed for the value of the piano.

The other questions presented do not call for extended discussion. The case seems to have been carefully submitted to the jury, and a verdict reached which the circuit judge, on a motion for a new trial, refused to disturb. There was sufficient basis for this holding.

The judgment.is affirmed.

The other Justices concurred.


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    HELPER v. MacKINNON MANUFACTURING CO.
    1. Evidence — Written Contract — Parol Evidence — Sales Contemporaneous Agreement.
    Where defendant contracted to purchase from plaintiff all the scrap material plaintiff should receive for the ensuing 60 days, at certain prices, evidence in an action on such contract that the real agreement between the parties was oral, and that it was agreed that the amount of iron to be furnished would not exceed the amount furnished the preceding 60 days, was inadmissible to vary the terms of the contract.
    3. Same—Circumstances oe Parties.
    Evidence was admissible, however, to show the general character. of the business of the parties, and to explain what was meant by “all the scrap material” plaintiff might receive.

      3. Sales—Contracts—Rescission—Waiver.
    Defendant, having agreed to purchase all the scrap iron plaintiff should receive for the ensuing 60 days, on discovering that plaintiff was purchasing iron from wholesalers to deliver to defendant, on account of a decline in price, refused to receive more iron; but later defendant notified plaintiff to begin delivering again, and, after plaintiff had delivered a further quantity, defendant again refused to receive more. Held, that defendant’s notification to plaintiff to begin delivering again constituted only a waiver of its right to stand on its first refusal, and did not constitute a new contract, waiving plaintiffs’ departure from the old.
    Error to Bay; Shepard, J.
    Submitted November 18, 1904.
    (Docket No. 118.)
    Decided December 22, 1904.
    Assumpsit by Harry Helper and Samuel Helper, copartners as Helper Brothers, against the MacKinnon Manufacturing Company for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Simonson, Oillett & Clark, for appellant.

      Edward E. Anneke and Fred W. De Foe, for appellees.
   Montgomery, J.

Plaintiffs are dealers in scrap iron and metal. Defendant is in the machine shop and foundry business at Bay City. Suit was brought and judgment rendered on the theory that defendant had refused to accept about 70 tons of iron which it was bound to accept under the terms of a written contract between the parties. The contract reads as follows:

“Bay City, Michigan, May 6, 1903.

“MacKinnon Manufacturing Company,

“ City.

“Gentlemen: We propose to furnish you all of the scrap material of the following grades which we may receive for the period of 60 days next ensuing from this date.

“No. 1 cast iron scrap at $18.00 per net ton.

“ Stove plate at $14.00 per net ton.

“Yours truly,

“Helper Brothers.

“ Accepted.

“MacKinnon Manufacturing Co.,

“H. D. MacKinnon,

“Pres, and Geni. Mgr.”

On the trial defendant offered to show that the real contract between the parties was verbal, and that the contract was struck off in a hurry to fix the price. Defendant also offered to show that at the time the contract was executed it was agreed that the amount of scrap iron to be furnished would not exceed the amount furnished the preceding 60 days. Both offers of testimony were properly excluded. The contract is plain and unambiguous in its terms, and is complete in itself, when the relations of the parties áre understood ; and to permit its terms to be disputed by showing that, instead of covering all the scrap iron plaintiffs should receive, the agreement was in fact for a limited amount, would do violence to settled rules. Cohen v. Jackoboice, 101 Mich. 409. Such testimony would tend to contradict the terms of a written instrument, and is not rendered competent by the fact that the written contract is general in its terms, if the terms employed are sufficient to create a contract susceptible of interpretation in itself. Stange v. Wilson, 17 Mich. 342; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147.

While it was not competent to show that there was a contemporaneous parol agreement which varied the terms of the written contract, it was competent to show the general character and business of the parties, to enable the jury to learn what was meant by the expression “all of the scrap material of the following grades which we may receive for the period of 60 days.” It is plainly evident from the writing itself that the contract was made with reference to the business in which plaintiffs were engaged, and that the undertaking of the defendant was to contract for such scrap as would naturally and reasonably be accumulated in such business as it was then conducted. The circuit judge so construed the contract, in effect, but the defendant contends that the benefit of this ruling was withdrawn by the court’s instruction on the subject of waiver. The question arose in this manner: The defendant offered testimony tending to show that, after the contract was made, there was a drop of something like $4 per ton in scrap; that thereupon the plaintiffs commenced to search out material in unusual quantities, to buy of wholesalers as they had not before been accustomed to, and thereby accumulated a much larger quantity than either party had any reason to anticipate at the time the contract was made. When defendant discovered these facts, as it claimed, it refused to accept any more iron. Later on, however, defendant’s manager telephoned to the plaintiffs, saying, “ Bring on your iron after dinner,” or, as defendant’s manager puts it, “I told them we were ready for iron; to begin delivery.” After the plaintiffs had delivered a further quantity under this direction, the defendant again refused to receive any more.

The court instructed the jury, in substance, that if the direction to bring on the iron was made with knowledge of the sources from which plaintiffs had accumulated it, and of the quantity they then had on hand, this direction would constitute a waiver of the claimed departure of plaintiffs from the contract. We think this was error. The telephone message was not a new contract. As such, it would be void under the statute of frauds. There is present no element of estoppel. It is not a case where a party has been called upon to rescind a contract for fraud, and has, by his delay, or by treating the contract as binding, waived that right. The defendant’s claim is that it has now accepted all the iron it was bound to take under the contract. If, after first stopping the delivery, there was doubt about this, and defendant saw fit to accept more, the only thing it can be said to have waived (as there was no estoppel) is the right to stand on its first refusal.

For this error the judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
      In re CAMPBELL.
    1. Criminal Law—Indeterminate Sentences—Fixing- Maximum Sentence.
    Under the indeterminate sentence law of 1903 (Act No. 136), the court is not required to fix the maximum sentence where the statute fixes the maximum term of imprisonment for the crime at a certain number of years.
    *3. Same—Statutes—Repeal.
    The determinate sentence law is repealed by the indeterminate sentence law of 1903 (Act No. 136), repealing in section 10 all acts and parts of acts inconsistent with it.
    3. Same—Constitutional Law.
    The constitutional amendment (Pub. Acts 1903, p. 453) expressly authorizing the enactment of an indeterminate sentence law authorizes Act No. 136, § 1, providing for sentences fixing no maximum term of imprisonment.
    Habeas corpus proceedings by Mary Campbell to obtain her release from imprisonment in the Detroit house of correction.
    Submitted December 14, 1904.
    (Calendar No. 20,827.)
    Petitioner remanded December 22, 1904.

      John W. McGrath, for petitioner.

      Charles A. Blair, Attorney General (George 8. Law, of counsel), for respondent superintendent.
   Carpenter, J.

January 5, 1904, petitioner was convicted of the crime of larceny in the circuit court for the county of Clinton. She was sentenced to confinement in the Detroit house of correction for a period “ not less than one year.” No maximum term of imprisonment was fixed by the court pronouncing sentence. The minimum term fixed by the court having expired if petitioner receives allowance for good time, she demands her release upon the-ground that her further detention is illegal, because the court failed to fix any maximum term of imprisonment.

Petitioner’s right to be discharged is based on the contention that it was the duty of the court, in sentencing her, to fix a maximum term for her imprisonment. The correctness of this contention depends upon the proper construction of section 1, Act No. 136 (the indeterminate sentence act) of the Public Acts of 1903, which reads as follows:

“ Every sentence to the State prison at Jackson, to the Michigan reformatory at Ionia, to the State house of correction, and branch of the State prison in the Upper Peninsula, and to the Detroit house of correction, of any person hereafter convicted of a crime, except of a person sentenced for life, or a child under fifteen years of age, shall be an indeterminate sentence as hereinafter provided. The term of imprisonment of any person so convicted and sentenced shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and no prisoner shall be discharged until after he shall have served at least the minimum term as provided by law for the crime for which he was convicted: Provided, that in all cases where the maximum sentence, in the discretion of the court, may be for life or any number.of years, the court imposing sentence shall fix the maximum sentence: Provided, further, that in all cases where no minimum sentence is fixed by law, the court imposing sentence shall fix such minimum, which minimum shall not be less than six months.”

.This statute imposes on the trial court the duty and gives it authority to fix the maximum sentence only “in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years.” Did this authorize or require the trial court to fix a maximum sentence for petitioner ? The law in express terms fixed the maximum term of imprisonment for the crime (larceny) for which petitioner was convicted and sentenced at five years. See section 11553, 3 Comp. Laws. If the trial court can or should fix the maximum sentence in this case, he must fix it in every case where the law fixes a maximum term of imprisonment, and gives him discretion to lessen that term. In short, under that construction, it is the duty of the trial court to fix a maximum sentence in nearly every case in which he sentences a convict.

What is meant by “cases where the maximum sentence, in the discretion of the court, may be for life or any number of years?” Does it mean all cases where a court has authority to sentence for a less period of time than a definite number of years, which the statute in express terms says shall be the maximum? If it does, the proviso, which it may be presumed extends to only a part of the instances within the statute, embraces substantially all of them. If it does, the trial judge, by prescribing a very low maximum, may totally deprive the governor, pardon board, and board of control of the opportunity to exercise the discretion which the statute intended to give them. If it does, then the trial judge, in cases where he can fix the minimum—as in larceny—may, by increasing the minimum and reducing the maximum, make a determinate sentence, and thus frustrate the legislative purpose in enacting the indeterminate sentence law. If the legislature intended to require the judge to fix a maximum term of imprisonment in substantially all cases, it would not have said, as it did in section 6 of the act, that a prisoner violating the conditions of his. parol shall “ serve out the unexpired portion of his maximum possible imprisonment.” In that case it would have been more appropriate and much easier to have said “maximum imprisonment.”

Moreover, “ cases where the maximum sentence, in the discretion of the court, may be for life or any number of years,” is not an appropriate description of a case in which the law fixes the maximum sentence at a definite number of years. In this latter case the maximum is fixed by law, and the court never had power to impose a life sentence, or any sentence in excess of five years. • The language of the statute under consideration does describe with precision a class of cases where it may well be said that the statute has fixed no maximum, but has given a discretion to the court to determine whether that maximum shall be imprisonment for life or any term of years; as, for instance, murder of the second degree, which “shall be punished by imprisonment in the State prison for life or any term of years in the discretion of the court trying the same” (see section 11471, 3 Comp. Laws), and rape, which “shall be punished by imprisonment in the State prison for life or for any such period as the court in its discretion shall direct” (see section 11489, 3 Comp. Laws). In our judgment, the language now under consideration refers to cases of this character, and therefore it imposed no duty upon the trial judge and gave him no authority to fix a maximum term in sentencing petitioner.

It is also urged that the words “provided by law,” in the following sentence found in said section, that “the term of imprisonment of any person so convicted and sentenced shall not exceed the maximum term provided by law for the crime for which the person was convicted and sentenced,” means, not provided by statute law, but fixed in the sentence. Language substantially identical to this was contained in the indeterminate sentence law of 1889 (Pub. Acts 1889, Act No. 228), which this court held unconstitutional in People v. Cummings, 88 Mich. 249. The entire court (see opinion of court, page 253, opinion of Justice Grant, page 264), while differing upon other questions, agreed that this language referred to the maximum fixed by the statute. It is true that section 1 of that act differs from section 1 of the act now under consideration in this: That section of the unconstitutional act did not contain the proviso requiring the court to fix a maximum sentence” in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years.” This proviso, which points out certain instances in which the maximum must be fixed, makes it clear that in other cases it need not be fixed, and therefore strengthens the argument that “provided by law,” in the sentence now under consideration means “provided by statute.”

Petitioner insists that the presumption against repealing statutes by implication requires us to hold that, notwithstanding the enactment of the indeterminate sentence law, the old statute continued in force so far as to make it the duty of the circuit judge in sentencing petitioner to fix a maximum sentence. When the indeterminate sentence act was passed there was no law which made it the duty of a circuit judge to fix either a maximum or minimum sentence. It is true that the law then in force required him to fix a determinate sentence. If, therefore, there is any old law which, notwithstanding the enactment of the indeterminate sentence act, requires a circuit judge to fix a maximum term of imprisonment, it is the law which required him to fix a determinate sentence. The argument then under consideration is this: That, notwithstanding the passage of the indeterminate sentence law, the determinate sentence law is partly in force. It is a complete ■answer to this argument to say that that law is clearly in conflict with the provisions of the indeterminate sentence law, and section 10 of that law (Pub. Acts 1908, Act No. 136) provides that “all acts and parts of acts in conflict with the provisions of this act are hereby repealed.”

Petitioner also urges that, as thus construed, the indeterminate sentence law is unconstitutional, because the “imposition of a sentence is a judicial act, and the exercise of discretion relative to the term of imprisonment is a judicial function,” which, under our Constitution, can be exercised only by certain specified courts. This argument assails the constitutionality of characteristic and essential features of the indeterminate sentence law. We must hold that the constitutional amendment (see Pub. Acts-1903, p. 452) which gave the legislature express authority to enact such a law gave it authority to enact a law containing these features.

It results from these views that the writ must be dismissed, and the petitioner remanded.

The other Justices concurred.


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    COMPUTING SCALE CO. v. TRIPP.
    1. Justices of the Peace—Certiorari—Affidavit for Writ— Evidence—Return—Contradiction.
    A justice’s return to a writ of certiorari to review a judgment recited that certain documents not contained in the affidavit-for the writ were introduced before him; that no stenographer was present during the trial; that the justice did not write down all of the testimony, and was unable to state all that was given; and that, after considering the evidence, he rendered judgment for plaintiff, etc. Held, that, though such, return did not in words contradict the affidavit for the writ, stating that it contained substantially all the testimony taken, before the justice, it did show that material evidence was introduced before the justice which was not set out in the affidavit, and" therefore an affirmance of the justice’s judgment, was proper.
    3. Same—Review—Remedy—Appeal.
    Appeal, rather than certiorari, is the more appropriate remedy to review errors committed in justices’ courts.
    Error to Allegan; Padgham, J.
    Submitted December-7, 1904.
    (Docket No. 128.)
    Decided December 22, 1904.
    Assumpsit in justice’s court by the Computing Scale-Company against Burrell Tripp for goods sold and delivered. Plaintiff recovered judgment, and defendant brought certiorari to the circuit court. There was judgment at the circuit for plaintiff, and defendant brings error.
    Affirmed.

      Pope & Cross, for appellant.

      Lewis L. Thompson, for appellee.
   Moore, C. J.

The plaintiff sued the defendant in justice’s court to recover the price of some scales sold to him. The defendant claimed the sale was a conditional one, which he had a right to cancel, and did cancel. The case was tried before the justice of the peace, who rendered a judgment in favor of the plaintiff. The defendant, instead of appealing the case, removed it to the circuit court by writ of certiorari. The circuit judge was of the opinion that, as the return of the justice showed there was other evidence given on the trial besides that returned and set forth by the justice, there was no error in rendering the said judgment, and he affirmed it. The case is brought here by writ of error.

It is the claim of the defendant that, as the affidavit for the writ stated it contained substantially all the testimony taken before the justice, .and that, as the return of the justice did not contradict it, the affidavit must be taken as true; citing Wilson v. Township Board of Burr Oak, 87 Mich. 240. The return of the justice shows that there were offered in evidence before him a bill of lading and a copy of a letter of acceptance with the order for the scales attached, and certain testimony of defendant, which was not contained in the affidavit. He also returned:

“No stenographer was present during the trial, and not all of the testimony was written down by me, the said justice of the peace. And I am unable to state all of the testimony that was given. That, after carefully considering the evidence, I rendered a judgment in favor of plaintiff. * * * That, if the conditions written on the back of the contract could be construed to defeat the plain terms of the contract, still the contract was in force, the plaintiff nor its agent not having signed the conditions or agreement on back of contract; and I was not satisfied that the defendant put himself in a position to countermand his order.”

It is true the return does not, in so many words, contradict the affidavit, but it does show that material evidence was introduced before the justice, which was not set out in the affidavit, and it is also a fair inference that other evidence was offered, which he could not return for the reason stated by him. We are not inclined to extend the rule stated in Wilson v. Township Board of Burr Oak, supra. It has been repeatedly held that appeal is the more appropriate remedy to review errors committed in justice’s court. Forbes Lithograph Co. v. Winter, 107 Mich. 116, and the many cases therein cited. In that case one of the errors assigned was “that the docket of the justice shows that the plaintiff did not appear within one hour after the hour of return named in the summons.” In disposing of this assignment, Justice Montgomery, speaking for the court, said:

“ An answer to the first point is that the docket entry is not returned, and the fact averred in the affidavit for certiorari is not made to appear.”

We think the circuit judge made a right disposition of the case.

Judgment is affirmed.

The other Justices concurred.


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    KENT v. AUDITOR GENERAL.
    Taxation—Misapplication op Payment—Sale—Cancellation op Deed.
    Where a taxpayer sent the amount of taxes due on his lands to • the township treasurer, who mistakenly applied the money in part to payment of taxes on other lands in which the taxpayer had no interest, leaving the taxes on a portion of his land unpaid, and such portion was sold therefor, the case does not fall within 1 Comp. Laws, § 3921, subd. 4, requiring the owner to pay the original taxes before he is entitled to cancellation of the tax deed, but the taxes are to be deemed paid, under subdivision 2 of said section.
    Mandamus by Charles A. Kent and Bryant Walker, trustees of the estate of Frederick Buhl, deceased, to compel Perry F. Powers, auditor general, to cancel the sale of certain land for the taxes of 1897.
    Submitted December 6,1904.
    (Calendar No. 20,766.)
    Writ granted December 22, 1904.

      Walker & Spalding, for relators.

      Charles A. Blair, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for respondent.
   Moore, C. J.

Frederick Buhl, at the time of his death, prior to the year 1897, was the owner of the S. \ of the N. W. £ and the N. \ of the S. W. •£, section 1, town 14 N., range 1 W. Relators are the trustees of his estate; petitioner Walker being the successor of one Robert Hosie, a former trustee.

It appears from the petition filed in this cause that Robert Hosie, former trustee, during his lifetime, had principal charge of the above-described property, with respect to the payment of taxes. December 3, 1897, Robert Hosie, as trustee, wrote to the township treasurer of Lee township, Midland county, requesting a statement of the amount required to pay the taxes for the year 1897 on said lands. As the result of such communication, the amount necessary to pay the taxes for the year 1897 was forwarded to that official, and a receipt subsequently returned to Mr. Hosie. Said receipt covers all of the descriptions referred to in the letter of Mr. Hosie, except the N. E. £ of the S. W. £. Instead of issuing a receipt upon that description, the treasurer included the N. W. £ of the N. W. £— land in which the estate had no interest—in place of the N. E. £ of the S. W. £. The taxes for the year 1897 on the N. E. £ of the S. W. £, section 1, town 14 N., range 1 W., not having been paid to the township treasurer for the year 1897, except in the manner stated above, that official returned the same to the county treasurer as- provided by law, and the county treasurer returned the same as delinquent to the auditor general. The taxes for the year 1897 on the description in question remaining unpaid, except as before stated, the auditor general included said description in his petition for the sale of the taxes of 1897 and prior years at the annual tax sale held in May, 1900. The description was bid to the State for the taxes of 1897, and subsequently became State tax land; and under date of January 20, 1902, said description was purchased at the auditor general’s department, as State tax land, by one William H. Graham, of the city of Lansing. Subsequent to the date of purchase, relators learned of such purchase, and applied to the auditor general for a cancellation of the sale made as aforesaid. The application of relators was refused. The relators ask for the writ of mandamus to compel the auditor general to cancel said sale.

It is the claim of the auditor general that the case comes under subdivision 4 of section 3921, 1 Comp. Laws, and that relators should pay the original tax before they are entitled to have the tax deed canceled, while it is the claim of relators that when Hosie sent the amount of the tax to the township treasurer, instructing him that it was for the purpose of paying the tax, that even though the township treasurer did not so apply it, it in fact paid the tax and discharged the lien, and brings case under subdivision 2 of section 3921, 1 Comp. Laws. The attorney general says the question is a new one in this State. Counsel for relators contend the following authorities sustain their position: Perret v. Borries, 78 Miss. 934; Meller v. Hodsdon, 33 Minn. 366. We think they are right in that contention. See, also, Bray & Choate Land Co. v. Newman, 92 Wis. 271; Lewis v. Monson, 151 U. S. 545; Hand v. Auditor General, 112 Mich. 597; Hough v. Auditor General, 116 Mich. 663; Carpenter v. Jones, 117 Mich. 91.

Writ of mandamus will issue as prayed.

The other Justices concurred.


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    BARLOW v. RIKER.
    1. Justices op the Peace—Replevin —Adjournments —Jurisdiction—Nonsuit—Judgment.
    Where, in replevin before a justice, the parties fail to appear on the adjourned day, if the justice has no intimation that the parties have agreed on an adjournment, it is his duty to render a judgment of nonsuit, with a return of the property. Comp. Laws, §§ 836, 10679.
    3. Mandamus—Review—Conolusiveness op Showing.
    Where no issue is joined on relator’s showing for mandamus against a justice of the peace, the statements contained in his affidavit must be considered as true.
    3. Justices op the Peace—Adjournments—Stipulations.
    Where a case pending in a justice’s court was adjourned to a particular day, whereupon plaintiff procured defendant’s consent to a further adjournment, it was plaintiff’s duty to appear before the justice and have the case adjourned.
    4. Same—Jurisdiction—Nonappearanoe of Parties.
    An action of replevin before a justice of the peace was adjourned to December 29, 1903. Thereafter, at the request of counsel for plaintiff, two oral agreements were made by counsel to adjourn the case—one to March 2, 1904, and the other indefinite. These were not brought to the justice’s attention until June 27, 1904, when defendant’s counsel presented a stipulation for the adjournment of the cause to July 22, 1904. Held, that the justice did not lose jurisdiction of the cause by reason of the nonappearance of the parties on December 29th.
    5. Same—Replevin—Judgment—Entry—Mandamus.
    Where a justice’s docket shows that he called a replevin case-on the adjourned day, waited one hour, and that neither party appeared, there are facts shown which are the equivalent of the oral announcement of judgment of nonsuit and for return of the property as provided by Comp. Laws, §§ 836 and 10679, and defendant’s demand that such judgment be formally entered should be complied with, and on refusal may be enforced by mandamus.
    Certiorari to Barry; Smith, J.
    Submitted December 14, 1904.
    (Calendar No. 20,768.)
    Decided December 22, 1904.
    Mandamus by Edwin Barlow to compel Marcus W. Riker, justice of the peace, to render a judgment of non-suit in an action of replevin. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      Thomas & Pryor and Thomas Sullivan, for relator.

      Colgrove & Potter, for respondent.
   Hooker, J.

Triphena Goodenough replevied two cows in a suit commenced before a justice of the peace, by writ returnable October 27, 1903. Proceedings seem to have been regular up to December 7, 1903, when the case was adjourned to December 29, 1903, upon the filing of a written stipulation to that effect signed by Erod W. Walker, attorney for the plaintiff, and by Charles EL Thomas and Thomas Sullivan, attorneys for the defendant. The docket entries and answer of the respondent show that these counsel had appeared upon the return and adjourned day, as such attorneys, and that neither had questioned the authority of the others to appear in such capacity. The affidavit filed with the application for mandamus shows, and we think it is not disputed, that, at the request of counsel for the plaintiff, two oral agreements were made by counsel to adjourn the case—one to March 2,1904, and the other indefinite—to defer the trial until the plaintiff should recover from an illness. These were not brought to .the attention of the justice until June 27, 1904, when defendant’s counsel appeared and presented a written stipulation, signed by said counsel, consenting that said cause should be adjourned to said 22d day of July. On the last-mentioned day no one appeared for the plaintiff, and counsel asked a judgment of nonsuit and for the return of the property. This the justice refused upon the ground that he had lost jurisdiction to make such entry. His return shows that neither party appeared on December 29th, and his docket shows that he called the cause regularly on that day, and neither party appeared, although he held the case open for more than one hour. This entry is all that appears of that date. It was the last entry made. No pleadings were filed in the case. His answer shows that on July 22d he . offered to enter judgment dismissing said suit as of December 29th, and that defendant’s counsel objected to his doing so. On December 29th the justice had jurisdiction of the case, and, having called the case and no one appearing, if he had no intimation that the parties had agreed upon an adjournment, it was his duty to render a judgment of non-suit, with a return of the property, under 1 Comp. Laws, § 836, which provides that judgment of nonsuit, with costs, shall be rendered against a plaintiff if he fail to appear within one hour after the time to which an adjournment shall be made, and section 10679, 3 Comp. Laws, which provides, in substance, that if the property specified in the writ shall have been taken thereunder, and delivered to the plaintiff, and the defendant recover judgment by discontinuance or nonsuit, such judgment shall be that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return. The justice has no right to omit such judgment upon the theory that the omission of the parties to appear divested him of jurisdiction in the matter.

The answer of the justice does not contradict the showing made for a mandamus as to what occurred between December 29th and June 27th, and no issue was joined thereon; hence, under the rule, the statements contained in the affidavit must be taken as true, and we must understand that the plaintiff prevented defendant from asking a judgment on December 29th by previously asking the favor of, and agreeing upon, an adjournment. It was plaintiff’s duty to appear and have the case adjourned on that day.

Again, before March 2d the parties agreed upon an adjournment, which was left indefinite as to time, but which was made definite on June 27th, when they stipulated in writing that the case should be adjourned to July 22d.

The justice did not lose jurisdiction by reason of the nonappearanee of the parties on December 29th. If he lost jurisdiction then, it was by reason of his failure to render any judgment on that day. We should not say this if there is evidence which justifies the inference that a judgment was rendered.

If we indulge in the usual leniency of criticism which the law requires in regard to justices’ proceedings and records, we may reasonably infer that when the justice had waited an hour, and neither party appeared, he knew that the plaintiff was not entitled to a judgment, and that his suit was at an end; that a judgment of nonsuit must follow, under 1 Comp. Laws, § 836; and that an order for the return of the property was unavoidable, under 3 Comp. Laws, § 10679.

Had the defendant appeared later in the day, and demanded, not the oral rendition of a formal judgment orally, but an entry of such, based on the claim that the facts shown in the record were equivalent to the announcement of such a judgment, we cannot doubt that he would have been entitled to it; and, had such an application been opposed by the plaintiff merely on the ground that the justice had omitted to orally announce, the formal though necessary consequence of the finding of facts entered in the docket, we would consider it a most technical claim. The record that he made shows a judicial determination at the proper time of facts which necessarily required a judgment of nonsuit and a return of the property, and left nothing to do but to enter the judgment in prooer form at a convenient time.

Doubtless the justice should have put the judgment indicated in formal shape by entering the statement that the judgment was for nonsuit and a return of the property, but this being practically announced either orally, or by entering in the docket the facts which are equivalent to it, the formal entry might lawfully be made later (see Tiff. Justice’s Guide, p. 470); and if he refused, an application for mandamus to compel it, made soon after, would have been granted. Under the circumstances of this case, we should not refuse it on the ground that he was not present, or that he did not move earlier.

We think that the order of the circuit judge should be reversed. The writ will issue.

The other Justices concurred.