text:
    WOODS v. PALMER.
    1. Brokers — Real Estate — Commissions—Action—Evidence— Sufficiency.
    In an action to recover commissions on a sale of timbered lands, evidence examined, and held, to support no other inference than that plaintiff was acting either in the interest of the purchaser or his own interest; that he suppressed one offer made by the purchaser that defendants were entitled to know; that he did not act in good faith with defendants, and that the idea of a commission was an afterthought.
    S. Same — Instructions—Support from Evidence.
    An instruction ¿hat the jury might find a verdict for plaintiff if they should find that he was a mere middleman, who brought the parties together' and permitted them to make their own bargain, is erroneous where, under the evidence, plaintiff conducted the entire negotiations and communicated the offer to defendants that was accepted.
    8. Same — New Trial — Verdict Against Evidence.

      Held, that a verdict for plaintiff was so clearly against the weight of the evidence that the court below should have granted the motion for a new trial.

      Error to Saginaw; Gage (W. G.), J.
    Submitted October 23, 1907.
    (Docket No. 118.)
    Decided March 5, 1908.
    Assumpsit by Charles Woods against Lizzie M. Palmer, Thomas W. Palmer, and Joseph A. Whittier, individually and as administrator of the estate of Joseph B. Whittier, deceased, for commissions on the sale of certain tim-j her. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Beach, O'Keefe & Bockwith, for appellants.

      De Vere Hall, for appellee.
   Grant, C. J.

The plaintiff’s action was brought to recover a commission on a sale of timber land alleged to have been made by him for defendants, who owned it under the firm name of C. Merrill & Company. There is no evidence of any express contract to act as defendants’ agent, or broker or middleman in the sale of the lands. Plaintiff first heard that these lands were for sale in the winter of 1902 and 1903, through one Lucas, whose lands, in the same vicinity, he was trying to buy. Plaintiff then went to see one Bowman who was looking after defendants’ lands to prevent trespass, etc. He testified that he then went to see defendant Joseph A. Whittier, and asked his price for the lands, and was informed “it was $55,000;” that he told Whittier it was too high; that he could not sell it at that price.

Plaintiff did not see defendant Palmer until the sale was consummated. Whatever time plaintiff spent in the examination of these lands is wholly immaterial, for he introduced no evidence tending to show that defendants knew that he was making examinations, much less that he was making them in their behalf. As soon as plaintiff learned the timber was for sale he informed Mr. Bradley, in whose employ he then was, and who finally purchased. Plaintiff testified that he went up and looked over the timber four or five different times, and every time he came back saw Mr. Bradley, and told him what kind of timber it was.

On March 9th, plaintiff wrote Whittier the following letter:

“I have got to go over to Canada to be gone two or three weeks for Eddy Bros., and will you please not let any outsiders know about price we talked on land and if you will please wait until I get back before you close a deal with any other party.”

To which Whittier replied:

“Yours of the 9th inst. was duly received. We have seen Mr. Bowman since you were here and from his report we think that our offer on the timber was low. We do not wish to tie the timber up as there are other parties who wish to look it, but as we desire to make the sale to you if possible, we will consent to give you an option at the price and conditions we named until April 1st, which will give you time to do your Canada work.”

Plaintiff testified that he meanwhile had told Mr. Whittier that if he did not sell to Bradley he thought he might sell to other parties. On March 26th, in reply to a letter from plaintiff to him, Mr. Whittier extended the option until Saturday, April 4th. Plaintiff, besides being in the employ of Bradley at the time, obtained a contract to do the lumbering, and soon after the contract of sale was made took possession of the property for Mr. Bradley.

Plaintiff admits that he kept telling Mr. Bradley that he would get it cheaper for him if he could; that he told Mr. Bradley that $45,000 was a big price, and he might get it for $40,000. Bradley then offered $42,000, but this offer was never communicated to defendants, and plaintiff was still then trying to get it for $40,000. Bradley finally communicated direct to plaintiff his acceptance of the offer of $45,000. Bradley then notified plaintiff to be present when the parties met to execute the papers. Ten thousand dollars was paid in cash, the balance on time. Plaintiff knew this. He made no request for payment. He said not a word about any commission until, according to his testimony, Mr. Palmer asked him what he was getting out of the trade, and “ I told him I wouldn’t get nothing except to get a commission out of him.” For almost three years plaintiff kept silent, and only after he had done the lumbering for Bradley and made a loss, did he claim any commission of either of the defendants. In a letter of February 18, 1906, written by plaintiff to Mr. Palmer, in which he is trying to persuade Mr. Palmer to pay him a commission, he wrote:

“Mr. Bradley said we will buy it if it is as you represent it, and if you will take the job of lumbering the same, and for me to help to buy the timber as cheap as they or I could, which I did try to do, but I told Mr. Bradley that I did not care to do the lumbering for it was very expensive stuff to pick up for a man to take it by the job, but at last I told Mr. Bradley to buy it, and I would take the chances to do the logging, which I did.”

February 15, 1906, plaintiff wrote defendant Palmer:

“ I do feel as if you ought to give me a commission for selling that timber for you, known as C. Merrill land in Gladwin county to Mr. Bradley. * * * I have lost money picking up scattering saw-log timber * * * and I do think I am entitled to a fair commission.”

There is no assertion in any of these letters that plaintiff had a contract to sell these lands upon a commission. They were only an appeal to Mr. Palmer to give him a fair commission because Bradley had lost, plaintiff had lost, and defendants had made a good sale.

Plaintiff negotiated the purchase of other lands from the defendants subsequently, and asked for extensions of time for payment, offering to pay six per cent, interest, but said nothing about the commission which he now claims. He explains his delay by saying that he supposed he was not entitled to his commission until Bradley had paid the entire purchase price — an excuse too lame to be entitled to any consideration.

The only written documents prior to the consummation of the sale are the letters above given. There is nothing in them to indicate that plaintiff was acting in the s^le of these lands as a broker or agent of the defendants, but, on the contrary, in the character of a purchaser. The conversation with Mr. Palmer after the sale was accomplished is no recognition or ratification of a contract. According to plaintiff’s own testimony it was a casual conversation, and was the first time that he had ever mentioned a commission to either of the defendants. It neither affirmed an existing contract nor created a new one. Palmer knew of no contract, and there could be no ratification without knowledge. From this record, I think no other inference can legitimately be drawn than that the plaintiff was acting either in the interest of Mr» Bradley or in his own interest; that he suppressed one offer made by Mr. Bradley which defendants were entitled to know; that he did not act in good faith with the defendants, and that the idea of a commission was an afterthought. It is just to the defendants to say that they deny all the material conversations to which plaintiff testified.

The court instructed the jury that they might find a verdict for plaintiff if they should find that he was a mere middleman, who brought the two parties together and permitted them to make their own bargain. The vice of this instruction lies in the fact that there was no evidence on which to base it. Plaintiff did not merely bring defendants and Bradley together and leave them to make their own negotiations. He conducted the entire negotiations, and finally, when he had secured from defendants the offer of $45,000, he communicated it to Mr. Bradley and he (Bradley) accepted it by so notifying plaintiff on the last day that his option expired.

If, however, there was any conflict of testimony, I think the verdict is so clearly against the weight of the evidence that a new trial should be ordered, which the court below refused.

The judgment is reversed, and new trial ordered.

Blair, Montgomery, and Ostrander, JJ., concurred. Hooker, J., concurred in the result upon the third ground stated.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    ALEXIER v. MATZKE.
    ’1. Insane Persons — Deaf Mutes — Contracts—Capacity.
    The old doctrine that a deaf mute was presumed to be an idiot » no longer prevails, and such persons are now held capable of entering into contracts if shown to have sufficient mental capacity.
    2. Same — Contracts—'Validity—Evidence—Suppioienoy.
    Where, in an action by a deaf mute to recover for work and labor, the evidence is undisputed and satisfying that plaintiff understanding^ entered into a contract, with his father’s consent and approval, to serve defendant, his brother-in-law, for the remainder of their lives in consideration of support and care, and both parties have acted upon the contract for twelve years without question, a verdict should be directed for defendant.
    Error, to Alpena; Emerick, J.
    Submitted November 14, 1907.
    (Docket No. 21.)
    Decided March 5, 1908.
    Assumpsit by August Alexier, Jr., against William Matzke for work and labor. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Charles B. Henry, for appellant.

      Joseph Cavanagh, for appellee.
   McAlvay, J.

The plaintiff is a deaf mute. He brought suit against defendant, who is his brother-in-law, for work and labor. Plaintiff lost his speech and hearing when about three years old as a result of sickness. He can write his name, and read a little in German. He has never been instructed by the usual methods used by deaf mutes to communicate with others. He communicates with some of his family by the use of motions and a limited number of signs, and watching the movements of the lips.

These parties are all German and speak the German language. In August, 1884, plaintiff, then 19 years of age, under an agreement agreeable to all concerned and consented to by his father, went to live on defendant’s farm where his parents lived, and to which farm defendant afterward moved. Plaintiff remained there until August 10, 1892, when the following agreement was made and signed by the parties to this suit and plaintiff’s father:

“This agreement, made this 10th day of August, 1892, between William Matzke of Maple Ridge township, Alpena county, Michigan, of the first part, and August Alexier, Sr., and his son August Alexier, Jr., of the same place, of the second part, witnesseth:

“ Whereas, the said August Alexier, Jr., being twenty-seven years of age, and deaf and dumb, and unable to earn independently enough to make his living, has agreed, with the consent of his father, the above-named August Alexier, Sr., some seven years ago, to live and stay with the said William Matzke * * * during their natural lives, and serve the said William Matzke with manual labor, and will faithfully obey all the reasonable wishes and commands of the said William Matzke, and protect and preserve the goods and property of the said Matzke; and the said William Matzke agrees and promises for the above consideration being faithfully and honestly fulfilled by the said August Alexier, Jr., he will board, lodge, wash, clothe him, and in case of sickness furnish him with medical attendance, care and medicine; but only as long as the said Alexier, Jr., shall remain and stay with the said Matzke.

“ If the said August Alexier, Jr., should ever elect or choose to leave and part ( ) with the said Matzke, then this agreement shall be null and void, and the said William Matzke shall be under no obligation to the said August Alexier, Jr., whatsoever, for any services the said August Alexier, Jr., has rendered during his stay with the said Matzke, and the said August Alexier, Jr., agrees and promises that he will, not demand any pay or other compensation for his services for the past years, nor for the future, except the above-named, during his stay, or while staying with the said William Matzke, but will be satisfied with any compensation the said William Matzke should elect to give him out of his free will to the above-named compensation.

“Given in Maple Ridge, the day and year first above named.

“William Matzke. (L. S.)

“ Signed in presence of “August Alexier, Sr. (L. S.)

“Fred W. Wendt. “AugustAlexier,Jr. (L.S.)

“Augusta Schenk.”

This contract was prepared by Rev. F. W. Wendt, the pastor of the church these people attended, and a friend of the family. It was written first in German and by signs explained to plaintiff, and then written out in English and signed by the parties in the presence of witnesses.

It is urged upon the trial on behalf of plaintiff that he did not understand and appreciate the terms of this instrument when he signed it. The case was tried and submitted to the jury, and a verdict for plaintiff for $515 was rendered and a judgment entered against defendant, who asks this court to set aside this judgment on account of errors assigned. At the conclusion of the testimony defendant asked the court to direct a verdict in his behalf, for the reason that by the undisputed evidence, in the case it appeared that plaintiff signed the contract with defendant understandingly and therefore cannot recover in this action. This motion was denied by the court, and the only important question in the case is whether the court erred in so doing. Defendant admits that the court upon the trial was correct in holding that the plaintiff in the case appearing to be a deaf mute, the burden of proof was on the defendant to show that plaintiff executed the contract understandingly.

The old doctrine that a deaf mute ;was presumed to be an idiot (i. e., non compos mentis) no longer prevails. 8 Am. & Eng. Enc. Law (2d Ed.), p. 842, and notes. The courts now hold that a deaf mute is not incapable of entering into contracts if shown to have sufficient mental capacity. 22 Cyc. p. 1208, citing Brown v. Brown, 3 Conn. 299; Collins v. Trotter, 81 Mo. 275.

The record, taken as a whole, shows that plaintiff does not lack ordinary intelligence. The question is not whether he was mentally competent to enter into this agreement with defendant, but whether he understood it at the time. The evidence upon this proposition was all furnished by witnesses for defendant. They are the father, mother and sister of plaintiff, the family minister, the defendant and his wife, who is also plaintiff’s sister. The testimony of these witnesses is unimpeached and uncontradicted. The acts of the parties to this suit strongly support the testimony in the case. The first arrangement was made with the consent of the father about eight years before the written agreement was executed. No dispute appears to have been raised under it. For 12 years after this final agreement the parties acted under it without question. There is nothing in the case that casts the slightest suspicion upon the testimony of any of these witnesses. It is plain that, considering the weight of this evidence, in an ordinary case the court would have held it conclusive and directed a verdict for defendant. Will a different rule be applied in this case because plaintiff is a deaf mute ? We see no reason why it should be made an exception. The mental competency of plaintiff having been established without question, the case is in the same condition as any case, leaving the transaction in dispute to be established by evidence. If the evidence was undisputed and conclusive that plaintiff understood the contract at the time he signed it — and we think it was — a verdict should have been instructed for defendant. Druse v. Wheeler, 26 Mich. 189; Lange v. Perley, 47 Mich. 352; Byles v. Township of Golden, 52 Mich. 612; Fourth Nat. Bank of Grand Rapids v. Olney, 63 Mich. 58; Corbett v. Spencer, 63 Mich. 731; Hunt v. Order of Chosen Friends, 64 Mich. 671; Gillett v. Knowles, 97 Mich. 77; Jakoboski v. Railroad Co., 106 Mich. 440.

The three cases relied upon by plaintiff, viz., Moliter v. Robinson, 40 Mich. 200, Woodin v. Durfee, 46 Mich. 424, and Wilson v. Royal Neighbors of America, 139 Mich. 423, are distinguished from the case at bar in that the evidence relied upon was not undisputed, as an examination of those cases clearly discloses.

For the reasons herein stated, the judgment is reversed and no new trial will be ordered.

Grant, C. J., and Blair, Moore, and Carpenter, JJ., concurred.


author: Ostrander, J.

text:
    PEOPLE, for use of REYNOLDS, v. BANHAGEL.
    1. Public Works — Contracts—Bonds—Security for Material-men — Release of Sureties,.
    The sureties on a bond given by a contractor for a public building to secure laborers and materialmen (sections 10743-10745, 3 Comp. Laws) are not released by the act of the public officers in paying the contractor faster than the contract provides.
    2. Same — Release of Sureties — Estoppel to Claim.
    Where, after a disagreement between the contractor and the public officers, the sureties of the contractor effected an arrangement under which he continued in charge of the work, but did not handle the money, and the contractor and sureties joined in a writing addressed to the architect and officers setting forth the arrangement and waiving any and all conditions stipulated in the contract, and further agreeing “ that said contract, plans and specifications and bonds hereinbefore referred to, are binding and of full force and effect, and shall so remain under any conditions or changes by us herein or heretofore authorized,” the sureties were estopped, when sued on the bond for materials subsequently furnished, to claim that the arrangement released them as sureties, and that after it the contractor was, no longer a contractor and that no material was thereafter purchased on his account.

      '3. Same — Payment—Evidence—Sufficiency.
    Documentary evidence and testimony examined, and held, that defendants’ claim that relator had been fully paid is not sustained.
    4. Same — Subcontractors—Rights.
    Persons contracting with the contractor to furnish all interior trim and shop work required for a public building according to the plans and specifications made by the architect, including doors, windows, stairs, cornice, moldings, and the like, are subcontractors and not materialmen, and are therefore not entitled to recover upon the contractor’s statutory bond.
    Error to Ionia; Davis, J.
    Submitted November 18, 1907.
    (Docket No. 105.)
    Decided January 31, 1908.
    Debt by the people of the State of Michigan, for the use and benefit of Alpheus Reynolds, surviving partner of the firm of Nichols & Reynolds, against Edward Banhagel, principal, and Seymour B. Gorham and Levi Marshall, sureties, upon a statutory bond. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Modified and affirmed.

      V. H. & L.'W. Smith, for appellants.

      H. C. Loveridge and B. A. & W. E. Hawley, for appellee.
    Edward Banhagel contracted, in writing, March 20, 1901, to' build a school house for $9,900. He gave the statutory bond to protect materialmen and laborers, with defendants Gorham and Marshall as sureties. Performance of the contract was entered upon. In August, 1901, after making a demand upon the district officers for pay for some claimed extras, Banhagel threatened to discontinue his undertaking. Notice of this came to defendant Gorham, who went from his home in Ionia to learn the nature of the difficulty. An arrangement was made, by the terms of which the work was continued, but Banhagel did not thereafter draw and disburse money. The money was paid into a bank to the credit of Wells Knapp, the school director, and he gave checks as required, and the architect Chapel assumed the general control of the work which was, however, carried on by Banhagel. The contract provided for payment of 85 per cent, of the contract price, upon estimates, as the work progressed, and of 15 per cent, when the work was completed and accepted. Under date October 10, 1901, Banhagel, Gorham, and Marshall joined in a writing, addressed to the architect and the school officers, reciting the making of the contract, the giving of the bond, the contract price of the building, the amount of the contract price unpaid, the necessity of using the unpaid, money to complete the building, and requested that the architect draw orders on said unpaid money from time to time to pay for material and labor and waiving any and all conditions stipulated in the contract, plans and specifications, relating to the manner of estimating and allowing the contractor sums of money as the work progressed and the retention of 15 per cent, of the contract price, with the further stipulation:
    “ We further agree, that said contract, plans and specifications and bonds hereinbefore referred to, are binding and of full force and effect, and shall so remain under any conditions or changes by us herein or heretofore authorized.”
    Plaintiffs furnished materials which entered into the construction of the school house and as such materialmen and as assignees of Ball Brothers, who also claimed to be materialmen, they, in September, 1903, brought suit upon the bond. A bill of particulars of their respective demands was required and was furnished. With the plea, a notice was given in which the defense indicated is that all of the items in the bills of particulars for which defendant Banhagel was ever liable were paid for before the suit was begun; that on or about August 7, 1901, a new ahd different arrangement than the one evidenced by the contract was made, by reason of which, and of the method of conducting the building operations thereafter, the sureties in said bond were released. Upon the trial, both parties offered evidence which was received, a verdict was directed by the court for the plaintiffs for the amount claimed by them, and the case is brought into this court with a record certified to contain all of the testimony and all exhibits .introduced at the trial. Seventy-four errors are assigned, 64 of which are, according to the brief for appellants, relied upon.

      Sections 10743-10745, 3 Comp. Laws. — Reporter.

   Ostrander, J.

(after stating the facts). We pass the objections made to receiving any evidence under the declaration and to receiving the bond and contract in evidence, as without merit. They are answered by an inspection of the declaration and by the undisputed evidence, to set out which would weary the reader without doing good. The contract and specifications were produced. The plan and the detail drawings appear to have been lost. The erection of the building in accordance with them is not a matter of dispute.

The matters deserving attention are three in number:

(1) Have the sureties been released ?

(2) Has the claim of Nichols & Reynolds been paid?

(3) Were Ball Brothers subcontractors or material-men ?

Two facts are urged as ground for holding that the sureties are released. The first one is that the contractor was paid faster than the contract permitted. Counsel for appellants rely upon Backus v. Archer, 109 Mich. 666; Simonson v. Grant, 36 Minn. 439; Stillman v. Wickham, 106 Iowa, 597. In each of these cases,, the bond was given to secure performance of the building contract, not to secure laborers and materialmen. Undoubtedly, a surety on a bond conditioned for the performance of a builder’s written contract according to specifications may insist that he is not surety for the performance of a different contract or for performance according to other and materially different specifications. So, too, if the contract provides for payments thereon at specified times or upon the proportional performance of the contract, and material advances are made by the owner to the principal in the bond without consent of the sureties. But the bond in question here is required by statute to be demanded and furnished. It runs to the people of the State. It is conditioned to pay, if the principal (contractor) does not, for the material and labor entering into the construction of the contract work. Its purpose would be defeated if by some alteration in the contract time or manner of paying the contractor the sureties could be released. Conn v. State, 125 Ind. 514; Steffes v. Lemke, 40 Minn. 27. It also appears that the contract is silent as to times of payment, the agreement being that payments should be made only upon estimates which are to be made about each 80 days. One, the last, estimate made before the August arrangement, was paid a week or so before the usual period. The estimate was, however, for work actually performed. There was no advancement of money to the contractor. The other (alleged) fact relied upon is that after the new arrangement of August, Banhagel was no longer the contractor and no material was thereafter purchased on his account. There is no such fact. Besides, the sureties have, by their conduct and the writing referred to, estopped themselves to set up such a fact. The contention made is therefore without foundation.

Has the claim of Nichols & Reynolds been paid? The notice given with the plea does not put this fact in issue. The language employed means, and was carefully used to mean, that the debts of Banhagel contracted before the making of the August arrangement, so called, were paid. It was contended at the hearing in this court that by inspection of a certain exhibit (check), known as Exhibit 29, it would conclusively appear, the remainder of the record being considered, that Nichols & Reynolds had, in fact, been paid. Because it does not appear that this exhibit, though printed in the record, was actually offered and received in evidence, a motion was made on behalf of appellants, in this court, to remand the record for correction. The matter is a very simple one. In the bill of particulars, certain credits are admitted. The exhibit in question is a check for $238.21, indorsed by Nichols & Reynolds, and bearing evidence of payment by the bank. Counsel for appellants contend that this check, or the amount of it, does not appear in the credits stated in the bill of particulars and that as its amount added to the credits appearing would make some $64.45 more than the total of debits, therefore it is established that the plaintiffs were overpaid. The balance of account for which Nichols & Reynolds had judgment is $173.76. The date of the check referred to is December 10, 1901, and it was paid December 11, 1901. On December 11, 1901, Nichols & Reynolds credit Banhagel’s account, not $238.21, the amount of this check, but $420.11. There is no testimony tending to prove that the amount of this check was in addition to the credit given on the day the check was paid and no reason appears for supposing that it was not a part of the credit given. We are obliged therefore to say that payment is not proved and that upon the record as made no question for the jury, upon this point, was made. In addition to this, however, in opposition to the motion to remand the record, made by counsel for appellants, counsel for plaintiffs filed a counter-affidavit, together with a canceled check for $181.90, drawn December 10, 1901, by the school director, in favor of Nichols & Reynolds, bearing their indorsement and the o. k. of Banhagel and stamped by the bank, paid December 11, 1901. The amount of these two checks is exactly $420.11, which is the precise credit given plaintiffs, in the bill of particulars, as of December 11, 1901. The checks are drawn upon different banks. The check for $181.90 was not made an exhibit at the trial. We do not treat it as a part of the record in this case in this court. The facts are mentioned as reason for denying the motion to remand, which we do, and as calculated to satisfy counsel for appellants that their claim is, in fact, as it is in law, unfounded.

Ball Brothers contracted in writing to furnish all interior trim and shop work required for the school house according to plans and specifications made by the architect for the sum of $1,175, to be paid, $100 down, “85 per cent, of contract price of all work as it is furnished and delivered and accepted as aforesaid.”

The price was divided in the, contract as follows: All finishing, cornice, etc., for the sum of $650; all exterior finishing, cornice, etc., for the sum of $175; all window frames, door frames and sash for the sum of $350. By the terms of the contract between Banhagel and the school district, the supervising architect was given full power to reject all materials and workmanship not in full accordance with the plans, specifications and detail drawings. Ball Brothers do business at Coldwater, Michigan, and what they furnished was, and by the terms of the contract was to be, delivered f. o. b. Coldwater “so as not to delay any of the work.” It appears by the testimony of Mr. Ball that they ha'd a copy of the plans and specifications and in getting out the material had nothing else to go by. When the goods left their hands, they were not in condition to be put into the building without some further work. The material had to be fitted in place, and some of it, like molding, cut in proper lengths, the sash required fitting and glazing, the doors had to be fitted with hardware and hung. Door frames and casings were shipped in what is called a “knock-down ” condition. There were five flights of stairs, consisting of oak steps and risers, with newel posts and railing and wainscoting, ready to be put in place, but requiring the work of carpenters in the building to fit each step and riser to place and to fit the railing and posts. Counsel for plaintiffs do not attempt to distinguish, and we shall not do so, such, if any, of the material furnished by Ball Brothers as was merchantable for any other place than the one intended to be filled by it in this building. Most of it was made for the place intended for it in the plans and specifications, according to which it was designed and manufactured. It is probably true, and is suggested by counsel, that the principal contractor might have bought the precise materials, in the precise form in which they were furnished for the price agreed upon, and made no reference whatever to his contract or to the plans and specifications. But he did not do so. The responsibility for furnishing material in accordance with the contract was cast upon, and was assumed by, Ball Brothers, who were also to be paid in accordance with the terms of the principal contract. What they furnished was to suit the plans and specifidations which were made the measure or test of the quality and fitness of whatever was furnished. This case is upon the facts materially different from the case of Van Bochove & Sons Manfg. Co., considered in the opinion in Kerr-Murray Manfg. Co. v. Power Co., 124 Mich. 111, 114, as a reference to the record in that case will disclose. Upon the authority of People, for use of Winkle Terra-Cotta Co., v. Cotteral, 119 Mich. 27, it must be held that Ball Brothers were subcontractors. It follows that the judgment below is excessive by the amount of Ball Brothers’ claim, of which plaintiffs were the assignees. As the amount of this claim is certain, being $600 with interest at 5 per cent, from August 21, 1903, to the date of the verdict and judgment, there is no objection to affirming the judgment as to the demand of Nichols & Reynolds and reversing it as to the demand of Ball Brothers, and it is so ordered.

The appellants will recover the usual attorney’s fee, in this court and one-half the taxable cost for the record and brief.

Montgomery, Hooker, Carpenter, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    GOODE v. ESLOW.
    1. Malicious Prosecution — Probable Cause — Instructions.
    The question of probable cause for instituting a prosecution being a mixed question of law and fact, it is proper in any-given case for the trial judge to direct the attention of the jury to a statement of what information, claimed to have been in the possession of the complaining witness, would be sufficient to constitute probable cause if the information was derived from reliable sources and was acted upon in good faith belief of its truth.
    2. Same — Specific Instructions — Necessity of Requests.
    Where both parties filed requests which called upon the circuit judge to charge the jury in general terms as to the law of probable cause, the appellant has no cause to complain that more specific language was not employed.
    3. Same — Probable Cause — Malice—Defense.
    The motive with which a prosecution is undertaken is immaterial if there was in fact probable cause.
    4. Same — Instructions—Person Aiding in Prosecution.
    In an action against - one aiding and assisting the complaining witness in a criminal proseoution, an instruction which leaves-the jury to infer that defendant’s immunity from action depends wholly upon the question whether he acted from improper motives in aiding and securing the arrest and conviction of plaintiff, notwithstanding the existence of probable cause, is improper.
    5. Same — Evidence— Prosecution for Adultery — Character of Wife.
    In an action for malicious prosecution against a father for assisting his son«in procuring plaintiff’s arrest for adultery, testimony as to the character of the son's wife, jointly arrested, as a hard-working woman, is immaterial, and its introduction prejudicial, as affording an opportunity for an appeal by counsel to the sympathies of the jury.
    6. Same — Instructions—Want of Probable Cause — Knowledge-of Defendant.
    There being no testimony in the case that defendant knew any facts of extenuation which were not equally known to his son, and it appearing that defendant had knowledge of all facts known to his son, instructions as to defendant’s liability in case he advised the prosecution without knowledge of the facts, or with knowlege of facts of extenuation not known to the son, though correct in the abstract, are misleading and should not be given.
    Error to Ionia; Davis, J.
    Submitted November 19, 1907.
    (Docket No. 59.)
    Decided January 31, 1908.
    Case by William H. Goode against James C. Eslow for malicious prosecution. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Huggett & McPeek and Scully & Davis, for appellant.

      A. A. & H. A. Ellis, for appellee.
   Montgomery, J.

This is an action for malicious prosecution. It is charged that the defendant, James C. Eslow, aided and supported his son, William C. Eslow, in instituting and maintaining a prosecution against the plaintiff on the charge of adultery with Clara A. Eslow, wife of said William C. Eslow. The evidence tends to show that defendant did furnish the money with which to carry on the-prosecution, and aided in securing testimony, and advised instituting the prosecution, and there was testimony tending to show that this prosecution was carried on with a purpose of aiding and assisting William C. Eslow in the prosecution of a civil suit then pending in Eaton county, instituted by the wife of William C. Eslow for the purpose of procuring a divorce, the custody of the children, and certain property which was claimed by defendant. The case turned then upon whether there was a want of probable cause and malice in causing this prosecution.

Upon the question of probable cause, the evidence tended to show that William C. Eslow and his wife were engaged in the business of keeping a bath house at Eaton Rapids, Michigan, where mineral baths were given to patients; that they had rooms to let which were used in connection with the bath house; that plaintiff was at one time stopping with the Eslows, receiving treatment; that while he was there it was known to Mrs. Eslow that her husband had become suspicious that there was undue familiarity at least between plaintiff and his wife; that after the plaintiff had left Eaton Rapids and gone to Saranac, Michigan, and about Thanksgiving Day of 1901, William C. Eslow and his wife and children went to Albion to spend the day at the home of the defendant. William C. Eslow returned- home to Eaton Rapids the following morning, leaving his wife and children to remain at Albion over Sunday. Early on Friday morning Mrs. Eslow put in a call at the telephone office for plaintiff at Saranac. She was unable to get into communication with him that day, although repeated calls were made, and she was not able to reach him until Saturday afternoon after he had returned from the country where he had been at work. She then had a conversation with him over the telephone, and immediately left Albion, taking the car for Jackson, where she arrived in time to take the evening train on the Michigan Central Railroad for Grand Rapids, arriving at that city between 10 and 11 o’clock. On Monday following she returned to Albion, and in the afternoon went to her home in Eaton Rapids with her children. Her husband knew nothing of this visit to Grand Rapids until some time in January following.

Just prior to the 10th of December Mrs. Eslow wrote a letter to a friend, Mary Derby, of Eaton Rapids, at that time engaged in teaching at Ypsilanti, requesting that she reply with a letter of invitation to visit her at Ypsilanti on Sunday, the 11th, and inclosing $3 to be returned to her as money sent by Miss Derby to pay the expense. The reply came. Mrs. Eslow left home on Saturday, December 10th, ostensibly for Ypsilanti. On Sunday, December 11th, Mr. Eslow met Miss Derby on the streets of Eaton Rapids and was informed that his wife was then in Ypsilanti. Not being satisfied with this statement, he called up Miss Derby’s boarding place by telephone and learned that no woman bearing the description of his wife had been seen there. Mrs. Eslow returned on Monday, the 12th, and her husband met her at the depot. She gave him an account of her visit with Miss Derby and how they passed the time, etc. After dinner he sought a private interview and endeavored to have her explain her trip. This she refused to do. The defendant happened to be at the home of his son at the time. Learning the talk between his son and his wife, the defendant interposed and suggested that, if the son would go out of the room, perhaps she would explain to him. This she did by claiming that she had been to Ionia to see a lady friend, Mrs. Parmeter, but acknowledged the deception she had practiced upon her husband through Miss Derby. She claimed that she would be able to show that she had been at Ionia by sending to her friend there for her photograph. The photograph came, but the testimony tends to show that it came before it could have been received in reply to a letter written by Mrs. Eslow.

Mr. Eslow wrote a letter to Etta Parmeter, the person with whom his wife claimed to have stopped, on the 17th of January, asking whether his wife stayed one or two nights with her. The reply which he received was as follows:

“Ionia, January 19, 1905.

Friend Will: I received your letter and am at a loss to understand why you should even ask such a question, as Clara certainly told you about her trip, I hope it isn’t possible you would ever for a minute doubt her word. Will, Clara and I were playmates since we were three years of age and together almost like sisters and I never knew her to tell an untruth and would trust my life in her hands, and you certainly should have as much confidence in your own wife as I. Perhaps you think I speak very plain to you, but it looks to me as though something was wrong, although Clara did not say an unkind word of you to me and I didn’t dream of anything until you wrote me. I hope you will not take offense as I only talk to you as I would to her. I will trust your honor to show this to her, I wouldn’t write a word I would not want her to see, as I think there should be no secrets between man and wife. I hope to be able to come out to see you all before summer. Tell Clara to write.

“ Yours in haste,

“ Etta.”

About this time a conference was had between defendant, his son and wife, and her brother-in-law, Henry Marion. Her brother-in-law had a private conversation with her, but reported to William C. Eslow that, although he thought nothing was wrong, he could get no explanation from Mrs. Eslow of her trip to Grand Rapids.

On the 7th of February the chancery case in the Eaton circuit, before referred to, was brought by Mrs. Eslow. Issue was joined in this chancery case, and William O. Eslow, under advice of counsel, undertook to investigate the conduct of his wife at Grand Rapids, and at Ionia at the time of her visit to that place. The bill charged William O. Eslow with cruelty. William C. Eslow visited the Dexter House at Ionia, and with the proprietor examined the register, finding that on December 10th the register showed that J. Butler and wife were assigned to room 29. Eslow showed a photograph of his wife and each of two waitresses identified her as the woman who had stopped at the hotel at that time and stated that she was with a tall, bald-headed man. These witnesses recognized plaintiff as the man who. was with the woman at the hotel represented by the photograph of Mrs. Eslow. This recognition took place at the examination. The chambermaid also recognized the photograph and gave a description .of the parties at the hotel, the woman’s dress, etc. Harry Scott, who was day clerk at the Dexter House, recognized the photograph of the Mrs. Butler who stopped with a bald-headed man as her husband as that of Mrs. Eslow. On the examination this witness also identified the plaintiff and Mrs. William C. Eslow. Floyd Nelson, the porter at the Dexter House, remembered the fact of carrying a suit case from the depot to the hotel and thought that the parties in court at the examination were the same as at the hotel. A letter, addressed to J. Butler, Wayland, Michigan, was returned by the postmaster with the information indorsed that no one of that name was known. While plaintiff was at'the bath house at Eaton Rapids, the wife of a Mr. J. Butler was there taking treatment. The plaintiff was well acquainted with her, and her husband was at the bath house frequently.

William C. Eslow at first thought that his wife, on the occasion of her trip to Ionia, left Eaton Rapids at 1:50 p. m., but at the time of the examination it was discovered from the time-tables that if this were true she could not have reached Ionia by the train on which the Dexter House employés claimed that she arrived in the city. The defendant on the examination testified that he came to Eaton Rapids with his wife on the 10th of December, in the forenoon, and that Clara A. Eslow had gone before they arrived at her home and was not seen by him until she returned on Monday. On the trial of the present case Clara A. Eslow testified that she left Eaton Rapids in the afternoon, and one Jesse Towner was called to sustain her and did give testimony that he saw her in Jackson in the afternoon, and stated that he remembered this from the fact of having paid his taxes that day. In this he is contradicted by the tax collector. Mrs. Peterson, who was employed in the Anderson House, which had communication with the bath house of the Eslows, testifies that she saw her at about 11 o’clock at her home. On the other hand, the testimony of the defendant is supported by that of his wife and by Bradley Miller, an employe of the Eslows in the bath house, by M. J. Knapp, a photographer, and by William C. Eslow, as well as by the testimony of the Dexter House witnesses who identified Mrs. Eslow as the woman who arrived there on the 4 o’clock train. Certain other items of testimony are in dispute, but the above is sufficient for the purpose of outlining the main features of the case, and has been given at such length for the reason that it is contended in this court that the circuit judge should have directed a verdict for the defendant.

We are not prepared to say, however, that there was no conflict in the testimony upon material questions in the case, and the particular question upon which the conflict arose will be indicated as we deal with the assignments of error numbered 23 and 24=. These assignments relate to the charge of the court, and complain of the court having used general terms in defining probable cause, and complain of the fact that nowhere in the charge is there a statement of what facts would, if in the knowledge of the defendant or of William C. Eslow, amount to probable cause for making a charge of adultery.

It is settled in this State that the question of what constitutes probable cause is a mixed question of law and fact, and therefore it is proper in any given case for the circuit judge to direct the attention of the jury to a statement of what information, claimed to have been in the possession of the complaining witness, would be sufficient to constitute probable cause if the information was derived from reliable sources and was acted upon in a good-faith belief of its truth. McClay v. Hicks, 119 Mich. 65. So in this case it would have been a proper instruction to this jury if the court had said that if the defendant had received information from his son, upon whom he relied, that the two parties who from the 10th to the 12th of December occupied the same room at the Dexter House in Ionia had been identified by two waitresses, the chambermaid, the clerk, and another as the plaintiff in this case and Mrs. William C. Eslow, and alsoi had knowledge of the telephone communication between plaintiff and Mrs. Eslow, and of her immediately thereafter leaving his home and going to Grand Rapids, and of the fact that she had refused to give any account of her trip there, and if in fact defendant believed the witnesses who identified these parties, this, in the absence of information showing such testimony to be mistaken or unworthy of belief, was, as matter of law, sufficient to constitute probable cause. If this were not so, the wronged husband would in any case far better form a conspiracy with the despoiler of his home than to turn to his own father for assistance in the time of his affliction.

It is true the plaintiff claims that Mrs. Eslow did not leave Eaton Rapids early enough on the 10th day of December to reach Ionia at as early an hour as she is stated by the defendant’s witnesses to have arrived at the Dexter House. Upon this question the testimony was conflicting, and the proper questions for the jury were whether in fact Mrs. Eslow left Eaton Rapids too late to reach Ionia at the time stated, and if so, whether the defendant at the time he lent his assistance to his son was cognizant of and had notice of this fact. If such fact did exist and defendant knew of it, it would of course be notice to him that the story told by the Ionia witnesses was untrue in fact. But, in the absence of such information to throw doubt upon all the statements of these witnesses. at the hotel, we are prepared to say that probable cause was fully shown. Nor do we think that the letter of Mrs. Parmeter, even if the defendant had knowledge of it, was sufficient to overcome the force of the information which the defendant acquired from the employés of the Dexter House as to the facts. The letter is evasive and the contents no answer to the inquiry contained in the letter to which it is in reply, and certainly it does not in any way dispute the testimony of the hotel employés. But although the better practice would have been to have given the instructions in this form, the record shows that on the trial below the counsel for the defendant was as. much responsible for the instruction being given in general terms as was counsel for plaintiff. Both parties filed requests which called upon the circuit judge to charge the jury in general terms as to the law of probable cause, and if he was not correct in this instruction it would not lie with the appellant to complain that more specific language was not employed.

Complaint is made, however, of an instruction contained in the original charge which reads as follows:

“ Now the son in this case if he was acting upon probable cause and without malice he had the right to make this complaint and institute this prosecution, and if he was acting upon probable cause and without malice it would end this case against James C. Eslow, unless you are satisfied by a preponderance of evidence that he acted corruptly and for an unjust purpose and upon unjust motives in order to secure the arrest and conviction of this man Goode in bringing about this prosecution, and that is to be determined upon whether he fairly stated the facts he knew to his son and whether he disclosed to the prosecuting attorney at such times as he had opportunity, and to his own counsel, all the facts that were within his possession upon this matter; whether he was acting fairly and in good faith and without malice. In order to secure a verdict the plaintiff in this case must satisfy you he was acting without probable cause and maliciously.”

We think this instruction was calculated to mislead the jury. If the last section of the instruction be omitted it is very clear that the immunity of defendant from prosecution was made to depend wholly upon the question of whether he acted from improper motives in aiding and securing the arrest and conviction of plaintiff; and the manner in which that question was to be determined was submitted to the jury as though that were the conclusive question. It is well settled that the motive with which a prosecution is undertaken is wholly immaterial if there was in fact probable cause, and the circuit judge in other portions of his charge so instructed the jury. But it is unlikely that they would apply that instruction to the specific facts pointed out as evidentiary facts, which would remove the protection which would come to the defendant from probable cause appearing to William C. Eslow, and when the last clause is read it is uncertain whether the requirement that the plaintiff should show that he was acting without probable cause and maliciously refers back to the son, William C. Eslow, and was intended to qualify the' first part of the instruction, or was intended to qualify the latter portion just preceding the clause in question. We think it is quite possible that the jury were misled by this instruction.

We should have some hesitancy about reversing the case upon this ground were.it not that we think error was committed in the admission of certain testimony. Mrs. Peterson, a witness for the plaintiff, was permitted to testify, against objection, as to the amount of hard work that Mrs. Eslow did while she and her husband were running the bath house. This was offered for the purpose of showing the class of woman Mrs. Eslow was, that she was a hard-working woman and took care of the bath tubs and all the work of running the house. We are unable to see how this testimony was competent. The fact that she may have been a hard-working woman did not bear upon the question of whether she was guilty of the act of adultery which had been charged against her and plaintiff in the proceedings in Ionia county. It was introducing collateral inquiry which it cannot be presumed that the defendant came prepared to meet, and, while it might afford opportunity for an appeal of counsel to the sympathies of the jury, it could not bear directly upon the question of her guilt or innocence.

One other matter is pointed out. At the request of the plaintiff, the circuit judge charged the jury as follows:

"10th. One who advises and secures a third person to institute a malicious prosecution may be held liable in damages therefor, and one who aids and abets the prosecutor in such action is liable equally with the latter for damages therefor, and in such case as well as in all tort actions the parties may be sued jointly or severally for the damages occasioned by reason of the malicious prosecution.

“11th. The fact that a person who, at the defendant’s instigation, made complaint, had probable cause for believing it to be well founded, will not avail the defendant as a defense where he acted without probable cause and maliciously; that is to say, even though you should find that William C. Eslow had probable cause, that will be no defense to James C. Eslow; I will add to that — if he acted without probable cause and corruptly to secure probable advantages to himself, in aiding and abetting, and if you find that these acts were malicious. I might perhaps illustrate it in this way: If I should have a horse stolen, and I should have certain circumstances that led me to believe honestly and fairly that a certain person took that horse, and should lay those facts before the prosecuting attorney, acting fairly, and there were certain facts and circumstances that would lead a man of reasonable mind to the conclusion, as ordinary men act, that such party was guilty of stealing the horse, acting without malice, I would have the right to set the law in motion and cause his arrest. If Mr. Ellis, as another party, was aiding and abetting me under these circumstances, he believing I had probable cause and sufficient cause, and I related all of these facts and circumstances to him, he acting honestly and in good faith in aiding me, in going security for costs or assisting me financially, it could not be said he was acting without probable cause and maliciously; but if he had some private end to gain, and without a knowledge of the facts he should urge and insist upon my making the prosecution, not believing that there was any cause for it, and it turned out there was probable cause, that would not save him; he might be guilty of acting without probable cause under these circumstances. But if there was probable cause, such as would have entitled me to institute that prosecution, and he was only acting in the interest of justice and fairness, he would not be held liable simply because the prosecution failed, where there was probable cause for me to institute the complaint. It is not necessary to prove that the defendant was the originator of the proceedings complained of. If he participated voluntarily in the malicious prosecution, and it was carried on with his countenance and approbation, he aiding and assisting, he will be liable.”

These charges may be correct in the abstract, but as applied to the facts in this case we think were misleading. The evidence in the case shows without dispute that the defendant had knowledge.of all the material facts known to William C. Eslow before the institution of the criminal proceedings, that he knew no facts of extenuation which were not equally known to William C. Eslow. There is no room in the case for the application of the rule which may be accurate enough in case there is any testimony tending to show knowledge of facts on the part of one who aids in a prosecution which were not possessed by the prosecutor. We think this instruction was calculated to confuse the jury and lead their minds away from the real issue in the case.

The other questions presented are not likely to arise on another trial.

The judgment will be-reversed, and a new trial ordered.

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


author: Hooker, J.

text:
    SMITH v. HUBBELL.
    1. Libel and Slander —Action — Evidence — Prior Transactions.
    In an action for libel in publishing strictures upon plaintiff’s management of certain matters as village attorney, questions concerning plaintiff’s management of other matters for the village and its officers some three years earlier, and in no way connected with the matter under investigation, are immaterial, and questions to plaintiff concerning them, on cross-examination, are properly excluded within the discretion of the trial court.
    2. Same — Evidence—Striking Out — Propriety.
    Testimony relative to plaintiff’s subsequent employment adversely to the interests of the village, admitted on counsel’s promise to connect it by other testimony with the time under consideration, is properly stricken from the record on failure to so connect it.

      3. Same — Evidence — Loss of Business — Refusal to Strike-Propriety.
    Testimony by plaintiff that his business fell off after the publication complained of, justifies refusal to strike out all testimony relative to loss of business.
    4. Same — Instructions—Justifioation.
    Where the evidence is such that the court might have told the jury that there was none to support defendant’s plea of justification, defendant has no ground of complaint respecting the instructions on that question.
    5. Same.
    Where a charge of perjury in making an affidavit filed with a claim for services against a village could be sustained only-in case the affiant falsely stated that the services were rendered for the village, the giving of an ambiguous instruction upon that question is not error available to defendant where another instruction fully presents the theory of justification in case the affiant knew the affidavit was false in that respect.
    Error to Lapeer; Smith, J.
    Submitted November 20, 1907.
    (Docket No. 123.)
    Decided January 31, 1908.
    Case by Herbert W. Smith against Albion W. Hubbell for libel. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Elmer Shumar and R. L. Campbell, for appellant.

      Geer, Williams & Halpin, for appellee.
   Hooker, J.

This cause was before us in the January, 1906, term, and has since been tried a second time, being again appealed by the defendant. We refer to our opinion on-the former hearing for an outline of the case, and do not repeat it here. See Smith v. Hubbell, 142 Mich. 637.

Counsel for defendant group the assignments of error as follows:

“ (1) The refusal to allow certain questions which were asked plaintiff upon cross-examination.

“ (2) Striking certain testimony from the record.

“ (3) Refusing to strike out testimony on motion of defendant’s counsel.

‘ ‘ (4) Errors in charge of the court as given.

“ (5) Errors in refusing to give certain requests which were asked for by defendant’s counsel.”

We will take these questions up seriatim:

Cross-examination of plaintiff. The only assignment of error relating to the denial of cross-examination of the plaintiff is assignment No. 1. The brief of the defendant’s counsel states:

“The most important phase of this case, in our judgment, was the refusal of the court to allow a full and complete cross-examination of plaintiff upon the question of his connection with the Michaels Bros.’ bill during all the stages of its progress, even up to the present time, and the action of the court in afterwards striking out testimony which had been admitted, and instructing the jury not to regard this testimony.”

That is the only allusion to the subject. Assignment No. 1 raises the only question we can consider on this branch of the case. On cross-examination plaintiff was asked:

“Q. Do you remember, Mr. Smith, being employed by Dr. Yerex, in behalf of the village, to prosecute a case in this court, in justice’s court, under a village ordinance ?

“A. Yes, sir.

“Q. You were sworn upon a case afterwards that was brought against Dr. Yerex, as village president, sworn as a witness ?

“A. Yes, sir.

“Q. Do you recall testifying on the trial of that case that in case where you appeared you did not care whether you were right or wrong as long as you got your money for it ?

“Mr. Halpin: Object to that as incompetent.

“The Court: Does his statement refer to the plaintiff or to this transaction ?

“Mr. Halpin: It is a transaction that has nothing to do with this at all; two or three years before this.”

Re-direct examination:

“ That was a case against a man named John Thick for violating' a village ordinance. That was two or three years before this time. Then an action was brought against Dr. Yerex for malicious prosecution.

“The Court: It may be stricken out.

Mr. Campbell: We object to the ruling of the court for the reason that the articles complained of, and the declaration in the case alleges plaintiff’s giving the village council and the officers thereof dishonest advice, in order to make money for himself, and we propose to show that plaintiff, himself, upon the witness stand in the case arising out of village matters, admitted that he did not care whether his advice was correct or not as long as he was paid for what he did.

“The Court: The record may show that when the employment took place by Mr. Smith looking to the employment in that case and this particular testimony you refer to, the court is unable to see how it is material in this case. (Exception for defendant).”

If we assume that the ruling of the learned circuit judge prevented the answer to the question put, which is not entirely clear, we agree with him that the question was immaterial to the issue and within the discretion of the trial judge.

Testimony stricken from the record. Assignment 5 is the only one raising this question. It is as follows:

“In striking from the record the testimony tending to show the employment of the plaintiff by Michaels Bros, in the suit by Michaels Bros, against the village trustees.”

This refers to some testimony elicited upon cross-examination of the plaintiff that after the alleged libel suit was commenced he was employed by Mr. Michaels to collect his claim against the village trustees upon commission, which was admitted. The testimony was admitted upon the promise of counsel to connect it with the relations of plaintiff with Mr. Michaels before the libel suit was begun and while he was yet city attorney. This he failed to do, and the court struck it out. In this no error was committed. There was nothing in the testimony tending to support defendant’s contention.

Refusing to strike out testimony. This relates to evidence offered to prove a loss of business by plaintiff. A portion of the testimony was struck out. Smith testified that his business fell off after the publication complained of. This was proper evidence, and justified the refusal to strike out all evidence.

Errors in the charge. The defendant endeavored to justify the alleged libel by attempting to prove its truth. Upon some of the points raised, the judge might have told., the jury that there was no evidence that it was true, and therefore, whatever he may have said about them was not injurious and need not be discussed, e. g., there was no proof justifying the claim that he was acting for Michaels against the city while he was city attorney. Again, he might properly have instructed the jury that ignorance of the statute in question was not such evidence of an ignorance of the law as would-justify the language used by the defendant as to plaintiff’s incompetency. Again, what was said about the mandamus proceeding was a proper criticism upon improper argument of counsel, which is within the province of the trial judge. What was said, left to the jury all of the legitimate defense upon the subject.

Assignment No. 7 relates to the charge on the subject of perjury in swearing to plaintiff’s bill for service in the mandamus proceeding. The judge said:

“ The claim of the plaintiff is that that language would carry to the ordinary reader of the paper a charge of perjury, and at first glance, and as I shall leave the case to you, you might possibly think that if the affidavit was false and that the bill was an illegal one, that it was perjury; but that does not necessarily follow from the bill being illegal. The bill may not have been a legal charge against the village of Imlay City, that is, not such a bill that the village was bound to pay or as a legal proposition, and it may have been such a bill that Mr. Smith could not enforce by suit against the village of Imlay City, and still Mr. Smith would not be guilty of perjury.' Perjury (notice the language) is the willful making of a false statement or a false affidavit, knowing the same to be false. I emphasize the word ‘knowing.’ Now, Mr. Smith may have supposed in good faith that the bill was a legal charge against the village, and if he did so believe, then it would not be perjury to swear to it, even if in truth and fact the village was not liable. Or if he were notified or told by the officers of the village to present the bill as a charge against the village, and that it would be paid so that the village might become liable in that way, then it would not, in my judgment, be perjury to swear that the bill was a claim against the village. So, gentlemen, you will bear that in mind, carefully considering whether it has been proven that he is guilty of perjury.”

Error is assigned upon the last two sentences. The only possible view that would sustain the theory of perjury is that the plaintiff falsely stated that the services were performed for the village, as there is nothing else in the affidavit upon which it could be based, under the proof. That was not the point brought out in the instruction complained of. If, however, the instruction would otherwise be open to the criticism of defendant’s counsel, it is not, in view of the following instruction which was given:

“ I charge you further that if you find that the plaintiff, at the time he made the affidavit verifying his bill of $69.8?, knew that the affidavit was false, and that the services mentioned therein were not rendered for or on behalf of the village of Imlay City, then the plaintiff was guilty of perjury, and was endeavoring by fraudulent means to obtain $69.8? which did not belong to him, and was attempting to loot the village treasury, and was using his position as village attorney as a means of exacting illegal fees from the village of Imlay City.”

Requests refused. Counsel have not discussed this branch of the case in their brief, and we might decline to consider the requests to charge. We have examined them, and think that they were covered by the general charge, except the second, which there was no error in refusing. We find no error, and the judgment is affirmed.

Montgomery, Ostrander, and Carpenter, JJ., concurred. McAlvay, J., concurred in the result.


text:
    KAUFMAN v. STATE SAVINGS BANK.
    1. Assignment — Insurance Policies — Validity—Acceptance — Presumptions.
    Where fire-insurance policies on plaintiff’s property were made payable to her husband, and after a loss had occurred he assigned them to her and deposited them with the company, the assignment being for her benefit and interest, her assent to and acceptance of it will be presumed.
    2. Husband and Wipe — Agency op Husband — Receipt op Draft —Sufficiency of Delivery.
    Where the proceeds of a fire-insurance policy on plaintiff’s goods were sent in the form of a draft, payable to plaintiff and her husband, and by him received and cashed through forgery of her name, a claim that title to the draft never vested in plaintiff, for the reason that there was no delivery of the same to her, is untenable, since she may avail herself of his receipt of the draft for her.
    3. Banks and Banking — Forged Paper — Purchase — Conversion.
    Where negotiable papers, representing the proceeds of fire-insurance policies on plaintiff’s goods, were issued payable to plaintiff and her husband, and delivered to him, and he availed himself of them by forging her name thereon, the bank purchasing them from him was liable to plaintiff for their proceeds as for conversion.
    Error to Wayne; Brooke, J.
    Submitted November 21, 1907.
    (Docket No. 6.)
    Decided January 31, 1908.
    Case by Adelaide Kaufman against the State Savings Bank for the negligent cashing of a check and draft.. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Walker & Spalding, for appellant.

      Osear M. Springer (Fred H. Warren, of counsel), for appellee.
   Montgomery, J.

This action is brought for the wrongful taking possession and conversion of a check and draft, each being made payable to the order of the plaintiff and Bernard S. Kaufman, her husband. The transactions which resulted in the giving of each of these items of commercial paper were in all substantial respects identical. The plaintiff was the owner of some furniture in the Sibley apartments, so-called, in the city of Detroit, which was covered by two policies of insurance, one in the Aachen & Munich Fire-Insurance Company, and the other in the American Insurance Company of Boston. For some reason, which does not clearly appear, the policies were made payable to Bernard S. Kaufman notwithstanding the ownership of the goods in the plaintiff. A fire having occurred, Bernard S. Kaufman assigned the policies to plaintiff and deposited the policies with the respective companies. The agent of the first-named company made a draft on the general manager for the amount of the insurance, payable to the order of Bernard S. Kaufman and Adelaide Kaufman. The second-named company, through its agent, made a check payable in the same manner to the order of Bernard S. Kaufman and Adelaide Kaufman. These two pieces of paper were indorsed to defendant by Bernard S. Kaufman in his own name and also in the name of plaintiff. The latter indorsement was wholly without authority, the draft issued by the first company being purchased outright on these indorsements, the check from the second company being received for collection on the like forged indorsement. Defendant, on receiving the fund, turned it over to Bernard S. Kaufman. The circuit judge directed a verdict for plaintiff, and defendant brings error.

It is claimed that no title to the paper ever vested in the plaintiff, for the reason that there was no delivery of the same to her. The assignment of the insurance to her was for her benefit and interest, and her assent to the assignment and acceptance of it would be presumed. Thatcher v. St. Andrew’s Church, 37 Mich. 264; Bangs v. Browne, 149 Mich. 478. The fact that this check and draft were made payable to the two rendered it, if plaintiff's contention be correct, as secure as it would have been had it been payable to the plaintiff alone, and we see no reason why plaintiff is not in a position to avail herself of the draft and check if she sees fit by affirming her husband’s receipt of the same to do so.

The meritorious question in the case is whether the defendant, having purchased this draft on the indorsement of one of two joint payees, and having assumed to collect the check on an indorsement which turns out to have been a forged indorsement of plaintiff’s name, is in position to assert title as against the true owner, or whether, on the other hand, having received the money upon the check and draft, the defendant is accountable to the true owner for the amount of money received. The defendant relies upon the case of Harding v. Parshall, 56 Ill. 219, and other cases, to establish the rule that a debt to two jointly may be paid to either, and this being so, it is urged that the owner of commercial paper is entitled to demand and receive payment even in the absence of any indorsement at all, and it is sought to reason from this that the indorsement by Bernard S. Kaufman of plaintiff’s name had no other effect than to enable Kaufman himself to receive payment through the instrumentality of the defendant.

It is a sufficient answer to this view to say that such was not the transaction. What did happen was that Bernard S. Kaufman, having in possession these two pieces of commercial paper, each of which represented money due to plaintiff individually, sold one piece of paper to the defendant, and put it in the power of defendant to recover from the payor the pay on the other piece on a forged indorsement. This as between plaintiff and Bernard S. Kaufman was a conversion of the property, and unless he was authorized to pass title to the defendant or vest it with an agency to receive the money on her paper, it was likewise as between the defendant and the plaintiff a conversion of the property.

In the same jurisdiction in which Harding v. Parshall, supra, was decided, it was held by Mr. Justice Scolfield, in Ryhiner v. Feickert, 92 Ill. 305, following and citing with approval 1 Daniel on Negotiable Instruments, § 681, that if several persons not partners are payees or indorsees of a bill or note it must be indorsed by all of them; either one of the joint payees may authorize the other to indorse for him, and an assignment of his interest in the paper from one to the other carries with it such authority, but there is no presumption of law that one may indorse for the other. The same rule was laid down in Wood v. Wood, 16 N. J. Law, at p. 128, and we have been unable to find any case which makes for the contrary rule. This is not the case of receiving payment from the maker by one of two joint payees; it is an attempt to transfer title in one case and create an agency in the other, and, as we have seen, this cannot be done except by indorsement of all to whose order the instrument is made payable. It will, of course, be understood that this is subject to the rule that under the implied authority of one partner he may indorse for his copartner. But that is not the case here.

The judgment will be affirmed.

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


text:
    BAGNALL v. YOUNG.

    Deeds — Conditions Subsequent — Buildings — Dwellings — Double Houses.
    A restriction in a deed against building anything on the premises but “a two-story dwelling house” prevents the grantee from erecting a two-story double dwelling house to be occupied by two families.
    Appeal from Wayne; Donovan, J.
    Submitted November 20, 1907.
    (Docket No. 64.)
    Decided January 31, 1908.
    Bill by Herbert Bagnall, Henry C. Colburn, and Elias W. Wardell against Louis A. Young and Esther M. Young to enjoin the violation of a building restriction in a deed. From a decree for complainants, defendants apapeal.
    Affirmed.

      William, P. Corbett (John H. Goff, of counsel), for complainants.

      Herbert C. Munro and Jasper C. Gates, for defendants.

       Rehearing denied March 17, 1908.

   Ostrander, J.

Complainants seek to restrain defendants from erecting a two-story “flat, dwelling-house building,” designed and intended for the use of more than one family, upon a certain lot owned by defendants on Melbourne avenue in Detroit, the deed of which contains the following restriction:

“ One of the conditions of this deed is that nothing but a two story dwelling house, costing not less than twenty-five hundred dollars ($2,500), set on a brick or stone foundation, and the necessary out buildings, shall be erected on said lots, said dwelling house to be set not less than twenty (20) feet from front line of said lots. No old buildings are to be moved on said premises.”

To the bill of complaint a demurrer was interposed, one ground of which, stated in various ways, is that a so-called two-family flat, suitable for a dwelling house for more than one family, is a two-story dwelling house within the meaning of the said restriction. The demurrer being brought on to be heard, it was overruled. Thereupon defendants answered, and in the answer deny that the lot is subject to any restriction which will prevent them from erecting and maintaining thereon a two-story, two-family flat or apartment building such as they are proceeding to construct; that said restriction is not open to a construction which will deny the right to build double houses, flats, or apartment buildings, but that the true intent and purpose of the restriction is to prevent the erection of business buildings upon the subdivision. While the answer is framed in a manner to support proof that the restrictions ought not to be enforced in this suit, it is evident that the principal question raised is the one raised and determined upon demurrer. We have no doubt, upon this record, that observance of the restriction may be enforced by the complainants. Frink v. Hughes, 133 Mich. 63. The construction and the legal effect of the restriction are the matters argued in this court, to which, from a decree making the injunction permanent, but giving to either party leave to move, under changed conditions, for a modification of the injunction, defendants have appealed. It does not appear that at the hearing in the circuit court the point was made- that the decision of the demurrer was binding upon the defendants as to the construction and legal effect of the restriction. For reasons set out at some length in Harris v. Roraback, 137 Mich. 292, we decide that “ a two-story dwelling house ” means, in this restriction, “one two-story dwelling house,” designed and used for a single dwelling, upon each lot.

The decree is affirmed, with costs to complainants.

Montgomery, Hooker, Carpenter, and I^IcAlvay, JJ., concurred.


author: Per Curiam.

text:
    LUTHER v. KENT CIRCUIT JUDGE.
    1. Mandamus — Propriety—Judgment for Costs.
    The error of the circuit court, on appeal from an allowance by commissioners of a claim against an estate, in rendering judgment against the administrator personally for the costs, is one that can be reviewed by writ of error, and hence will not be reviewed by mandamus.
    2. Same — Execution—Stay Pending Appeal.
    Mandamus is the appropriate remedy by which to review the action of the circuit court in refusing to stay execution on a judgment pending an appeal to this court.
    3. Appeal and Error — Stay of Proceedings — Seourity—Sufficiency-Judgment for Costs.
    "Where, on appeal by an administrator from an allowance by commissioners, judgment is rendered against the estate for the amount of the claim and against the administrator personally for the costs, section 10355, 3 Comp. Laws, does not require that the administrator, in order to stay execution against himself personally, pending review in this court, shall give a bond to pay the judgment against the estate as well as the judgment against himself for the costs.
    Mandamus by George E. Luther to compel Alfred Wolcott, circuit judge of Kent county, to amend a judgment and grant a stay of execution pending an appeal.
    Submitted November 26, 1907.

    (Calendar No. 22, 583.)
    Writ granted January 31, 1908.

      Thomas P. Bradfield (Chester W. Whitmore and Edmund H. Smalley, of counsel), for relator.

      Elvin Swarthout (John E. More, of counsel), for respondent.
   Per Curiam.

Relator is the administrator of the estate of Reuben H. Colburn, deceased. He appealed to the circuit court from an allowance of a certain claim against said estate by the commissioners. The case was tried before respondent and a jury, and a verdict rendered against the estate for something less than the amount allowed by the commissioners. On said verdict, respondent rendered judgment against relator as administrator for the amount of the damages, and against him personally for the amount of the costs. Subsequently the relator asked respondent to amend the judgment “ so as to make the costs payable out of the estate and not payable by said relator personally.” He also asked respondent to stay execution against the relator individually and personally, pending the final decision in this court, upon relator giving bond to the claimants in double the amount of the costs taxed. Each of these motions was denied. Relator complains of this action and seeks relief by mandamus.

The claim that respondent erred in rendering judgment for costs against relator personally is one which can be reviewed by writ of error. Schmidt v. Wayne Circuit Judge, 136 Mich. 658. There we said:

“ It seems clear that an erroneous judgment that a party recover his costs to be taxed, should be reviewed on error, and in no other way. ”

That claim will not, therefore, be reviewed by mandamus. Mandamus is, however, the appropriate remedy by which to review the contention that the court erred in refusing to stay execution against the relator individually and personally, pending the final decision of this court. Whether the decision of respondent was correct or not depends upon the construction of section 10355, 3 Comp. Laws. That section reads:

“That no stay of proceedings upon any verdict or judgment rendered in any circuit court in this State shall hereafter be granted or allowed for the purpose of moving for a new trial or settling a bill of exceptions in the case in which such verdict or judgment was rendered, for a longer period than twenty days, unless the party applying for such stay, if judgment shall have been rendered against him, shall execute to the adverse party a bond with sufficient sureties in such sum as the circuit judge, before whom the case was tried, shall designate, conditioned to pay such judgment if the same is not set aside or reversed, and that if a writ of error is issued in said cause .that the appellant shall prosecute his writ to effect and shall pay and satisfy such judgment as shall be rendered against him thereon.”

Respondent decided that, under a proper construction of the foregoing section, relator has no right to a stay of execution upon the judgment against him personally without giving a bond to pay the judgment against the estate. This decision assumes that the judgment against relator for the costs and the judgment against the estate for the damages isone and the same judgment. In a sense perhaps this is true. For instance, a single writ of error would bring the whole matter before the attention of this court. In another sense, and in the sense in which the term is used in the foregoing statute, there are two judgments; one against the estate for the damages, and another against relator for the costs. Relator does not ask for a stay of proceedings upon the judgment against the estate. He asks only for a stay of proceedings upon the judgment against himself. If he gives a sufficient bond to pay that judgment, he is entitled to a stay of proceedings thereon. The statute does not require him to also obligate himself to pay the judgment against the estate.

Markham v. Kent Circuit Judge, 121 Mich. 574, relied upon by respondent, is not inconsistent with this opinion. There it was merely held that the administrator had no right to a stay of proceedings upon a judgment against the estate without executing a bond to pay such judgment. The proposition decided in this opinion was not presented nor considered in that case.

The writ will issue in accordance with this opinion.


text:
    WAGNER v. WAYNE PROBATE JUDGE.
    1. Insane Persons — Guardianship—Special Guardians — Procedure.
    Where an application is made under section 8710, 3 Comp. Laws, for the appointment of a" special guardian for an incompetent person, pending appeal from the appointment of a. general guardian, in which the issue of incompetency has been determined, it is not necessary that there shall be a new-hearing and a new determination of that issue.
    2. Same — Special Guardian — Appointment — Discretion of Court.
    Where a general guardian, appointed pursuant to proceedings regular in form, is interfered with in the performance of his duties by an appeal or otherwise, the question of appointing a special guardian is addressed to the sound discretion of the court and is determined by the apparent condition of the ward,, or of his estate, or both.
    8. Same — Auxiliary Proceeding — Sufficiency of Showing.
    The application for a special guardian in such case is auxiliary to the proceedings for a general guardian, and the necessary showing may be made by the proofs produced at the hearing upon the original application. .
    4. Same — Premature Application.
    Proceedings for a special guardian are not premature because taken before the appeal from the appointment of the general guardian is perfected.
    5. Same — Application—Persons Entitled.
    Jurisdiction to appoint'a special guardian does not depend upon the particular relationship to the alleged incompetent of the person suggesting or applying for the appointment of the special guardian.
    6. Same — General Guardian — Application—Persons Entitled.
    Under section 8709, 3 Comp. Laws, the person applying for the . appointment of a general guardian of an incompetent person need not be a blood relative, the words “relations or friends” in the statute having a broader meaning than the single word “relations.”

      Certiorari by Christine Wagner to review an order of Edgar O. Durfee, probate judge of Wayne county, appointing a general and special guardian.
    Submitted January 7,1908.
    (Calendar No. 22, 570.)
    Affirmed January 31, 1908.

      Devine & Snycter, for plaintiff in certiorari.

      Hang & Yerkes (George F. & Peter J. Monaghan, of counsel), for defendant in certiorari.
   Ostrander, J.

The record of a proceeding to appoint a special guardian for an alleged incompetent person is brought into this court by writ of certiorari, and with it the record in the proceeding to appoint a general guardian in the same matter. It appears by the return that the court had, after an extended hearing, made an order appointing a general guardian for the property and person of plaintiff in certiorari and that she had appealed therefrom to the circuit court. Notice of and reasons for appeal had been filed, the bond on appeal filed and approved, and an order made directing the manner in which notice of the appeal should be given, after which and on the same day and before the appeal had been perfected August Wagner, who is brother-in-law of plaintiff in certiorari, who in his petition described himself as friend and is the same person who petitioned for the appointment of a general guardian, applied for the appointment of a special guardian. He set out the fact of the adjudication of incompetency, the appointment and qualification of the Union Trust Company as guardian, the appeal and the fact that Christine Wagner was possessed of an estate, real and personal, valued at upwards of $15,000, besides a life estate in realty valued at $50,000 and upwards, and alleged that it was necessary in order to protect her property, collect the rents and care for her, that a special guardian be appointed pending the determination of said appeal. Reference is also made to the petition for the appointment of a general guardian and to the proceedings had thereon. The statute provision is (3 Comp. Laws § 8710) that ifi after a full hearing and examination it shall appear to the judge of probate that,the person in question is incapable of taking care of himself and managing his property, he shall appoint a guardian of his person and estate; and, upon a proper showing and upon such notice as he shall direct, pending any application for the appointment of a general guardian as aforesaid, or pending any appeal or litigation in relation to the appointment of such general guardian, may, if he shall deem it fit and proper, under the circumstances of the case, appoint a special guardian of such person. The statute does not contemplate that where the issue of incompetency has been determined there shall necessarily be a new hearing and determination of that issue upon the application for a special guardian. Assuming the regularity of the proceedings to appoint a general guardian and an interference by appeal or otherwise with the performance by the guardian of his duties, the question of appointing a special guardian is addressed to the sound discretion of the court and is determined by the apparent condition of the ward, or of his estate, or both. It is an auxiliary proceeding (In re Bassett, 68 Mich. 348), and it is apparent that “a proper showing,” within the meaning of the statute, may be made by the proofs produced at the hearing upon the original application. We are of opinion that the objection that the application for, and the appointment of, the special guardian were premature because the appeal from the order appointing a general guardian had not been perfected, and the objection that the court had no jurisdiction to appoint a special guardian because formal application therefor was made by a person neither a relative nor friend within the meaning of the statute, should be overruled; the latter on the ground that jurisdiction did not depend upon the particular relationship to the alleged incompetent of the person suggesting or applying for the appointment of the special guardian. As to the sufficiency of the service of the notice required to be given, we must assume from the return that service was made in the manner and time directed.

It is urged, however, and this is the meritorious question presented, that the court acquired no jurisdiction to appoint a general guardian and, for that reason, no jurisdiction to appoint a special guardian. In re Bassett, supra. The ground of this objection is the one already stated, viz., that August Wagner is neither a relative nor friend of the alleged incompetent within the meaning of the statute. It appears from his petition that there are a number of relatives by consanguinity, some of them residing in the city of Detroit, and no reason is given, in the petition, for interference in the matter by the brother-in-law. By her attorneys, the alleged incompetent objected that petitioner was not such a relative or friend as the statute contemplates. There is no finding or determination of the probate judge upon the matter beyond this, that in appointing a general guardian he necessarily overruled the objection.

From the year 1818 until now the words “friends or relations ” appear, in the same connection, in the statute law of the Territory and the State. The act “empowering the judges of probate to appoint guardians to minors and others,” made a part of the Territorial law by the governor and judges, July 27, 1818 (1 Terr. Laws, p. 375), is adopted from the laws of Massachusetts. In common parlance, a friend is “one who entertains regard for another and takes active interest in his welfare.” Is this the statute meaning of the word, and, if it is, is jurisdiction conferred upon the court by the bare allegation, in the petition, that petitioner is a friend of the alleged insane or incompetent person? We are referred by counsel to no interpretation of the word in a similar connection. The Massachusetts courts have not, so far as our examination has extended, discussed or determined the point here presented. The supreme court of Wisconsin, considering a similar statute, expressed the opinion, although not called upon to decide the question, that a case might arise—

“ Where the court would be justified in proceeding upon the application of a person having no more friendly relations to the incompetent person than the petitioner in this case [petitioner described himself as a neighbor and life-long friend and alleged that the incompetent had no. wife or children in the county] ; but where it appears that there are near relatives or others occupying the position of a ‘ friend,’ having intimate associations with the party proceeded against, such relatives or friends ought to be the petitioners, unless some cause be shown why they neglect or refuse to proceed; * * * unless it appears from the petition that there is some good reason why the application is not made by such relatives.” Appeal of Royston, 53 Wis. 612.

It is a general rule that no court can allow any one to intervene in the affairs of an estate unless personally interested or authorized by law so to do. Breen v. Pangborn, 51 Mich. 29; Taff v. Hosmer, 14 Mich. 249. In the latter case it was held, however, that a near relative (grandfather of the minor), who could not have appealed from the probate of the will if nothing but property was involved, could appeal if the will appointed guardians to the minor. See Goss v. Stone, 63 Mich. 319, 321. The point considered was what persons other than the father, mother and infant, who are named in the statute, were authorized to intervene in proceedings to appoint a testamentary guardian for an infant, and the right of others to intervene and to have notice of such proceedings was found in the jurisdiction of courts of chancery over the persons and estates of infants and the practice, in those courts, of referring matters of that nature to a commissioner to report the circumstances of the infant, what relations he had, and admitting all proper parties to propose a guardian. Under this practice, the. term ‘ ‘ relations, ” it is said, included those who would, if the infant died intestate, be entitled to a distributive share of his estate. It is at least doubtful if, as to lunatics and incompetents, the same jurisdiction is admitted. But it may be reasonably said that the legislature intended in the use of the term “relations or friends,”not merely- to employ two different words with equivalent legal meaning, but to designate a class of persons, other than relatives, who might institute guardianship proceedings in the case of alleged insane and incompetent persons. We feel obliged to hold that the word “friends” means, in this statute, something different from the word “ relations.” It may seem that it will be intolerable if any busybody, however kindly disposed, may, upon the mere allegation of friendship, set in motion an inquisition of this nature, calling upon the respondent to defend himself, at more or less expense, from the charge of mental incompetency. It is equally intolerable if, in a particular case, friends may not be heard, even in opposition to relations, to assert, in such proceedings, the insanity or the mental incompetency of a person. It is to be kept in mind that this statute contemplates the existence of insanity or of mental infirmity equivalent thereto in destroying mental competency. In re Brown, 45 Mich. 326; In re Storick, 64 Mich. 685. It is also to be observed that such an incompetent is, in fact, incapable of dealing with his property, and that various contract and other relations may be involved in his actions with reference thereto. In short, there is a sound public policy served in requiring that incompetent owners of property shall be represented in all dealings with reference thereto by a duly qualified and responsible agent. This in addition to considerations of proper care of the incompetent. And a case may be imagined where relations were in conspiracy to secure to themselves the property of the incompetent. These considerations support the conclusion that the words relations and friends are employed in this statute with their popular meanings. Counsel seem to be agreed that the word relations has a more limited meaning. This upon the supposed authority of Taff v. Hosmer, supra, a case in which, as we have seen, this statute was not considered and in which the conclusion arrived at is stated in the following language:

“We are entirely satisfied that the next of kin may, if they see fit, make themselves parties to guardianship proceedings, and that when they do so, they may appeal from an adverse decision.”

The -cases in which it is held that a power to appoint amongst “relations and friends” is to be considered as a power to appoint relatives only; that a reversion of realty to “my friends” means to the testator’s kindred; that a statute which permits administration of an estate to be committed to “the next and most faithful friends ” should be interpreted so as to limit appointment to blood relatives, rest upon reasoning and upon conditions not here present or applicable. We find in the language employed in the statute nothing to indicate that the legislature intended to prefer relatives to friends, or to limit either class of persons by a particular relationship or intimacy with the alleged incompetent. It seems insensible to find limitations of the meaning of the word relations and give to the word friends its generally accepted meaning. The essential inquiry in every case is whether the person alleged to be insane or incompetent is so in fact. Upon this subject, it is apparent, a friendly neighbor may be better informed than a relative living at a distance. If it is a fact, the incompetent ought not to continue to manage himself or his property. Notice of proceedings to ascertain the fact must be given to the incompetent and to those interested in his estate, and, presumptively, in his welfare. In re Bassett, supra; In re Myers, 73 Mich. 401. See, also, Storms v. Allegan Circuit Judge, 99 Mich. 144; Munger v. Kalamazoo Probate Judge, 86 Mich. 363. Courts will look with disfavor upon, and legal remedies can be found for, mere intermeddling in such cases.

We are of opinion that the petition for appointment of a general guardian is sufficient to confer jurisdiction upon the probate court and that the order and determination of that court in appointing the special guardian should not be disturbed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.